1

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, P[~ETORIA)

CASE NUMBER:70285/2013

In the matter between:

IBR FIRE PROTECTION CC trading as IBR FIRE

(Registration Number 1990/029365/23)

and

THE MINISTER OF LABOUR

SASS COMMERCIAL SOC LIMITED

(Registration Number 2000/013582/07)

JUDGMENT

TLHAPI J

INTRODUCTION

r-··-: ~ .·~ ~-.. Tt:= .. ,f . I ' ' ' ,AP,P~~~+CHEVER IS NO'r'APPCi&s ' •J i·~c.:,-,u,- , If· EJLE: YES/NO. ,.,.,..,."'.

(2) OF INTEREST TO OTHER JUDGES: YES/NO.

(3) REVISED. / . .

_&_ ~A~-~_!_.1 .......... !._~t .lo..~ }~--"" ' sici~ruae·--·-·······-··

FIRST RESPONDENT

SECOND RESPONDENT

[1] This is an application seeking the following orders:

"1 Compelling the First and the Second Respondents to make available to

Applicant all original manufacturers standards, specifications and

requirements as set out SANS 1475 Parts 1 and 2, at inter alia (but not limited

to)

2

Clauses 3.25; 4.4.1; 5.1 .2; 5.1.7; 5.2.1.2; 5.2.1.4; 5.2.4; 5.2.8 c; 5.3.5; 5.5.2.1 ;

5.5.3.2.2; 5.5.3.3.1;

Annex C Table C.1 items 2,3,9,11 ,12,13,17,18;

Annex D items D2,D4,D6,D8;

Annex E item E5;

2 Interdicting the Respondents from:

2.1 The implementation of the on-site verification checklists to Standardise audits

uniformity throughout the industry (CrtF 011 );

2.2 The implementation of the SANS 1475 Parts 1 and 2 On-Site Audits;

3 That the Order in 2.1 and 2.2 above will operate with immediate effect as an

interim order pending compliance with 1 above."

Prayers 4 relate to service upon the respondents and prayer five relates to costs. The

application was opposed by the second respondent.

BACKGROUND

[2] The applicant was established during 1990. It is accredited with various regulatory

bodies in the fire industry, the second respondent being one of them. The applicant is also

accredited and registered to design and install ; to supply, maintain and recondition fire

fighting appliances and equipment and such functions are regulated. The first respondent

is responsible for the health and safety standards and guidelines in terms of the

Occupational Health and Safety Act 85 of 1993 ("OHASA"). The applicant in its business is

obliged to comply with the standards published by the South African National Standards in

this instance the SANS 1475 Parts 1 and 2. The second respondent is responsible for the

3

administration and enforcement of such standards. The applicant having been accredited is

consequently a holder of a SANS 1475 Part 1 and 2 Mark Permit. The purpose of the

application is to address the difficulty encountered by the applicant in the repair of fire

fighting equipment, in particular, the refurbishment thereof, conducted either at its workshops

or when it is called out to vet such equipment installed on the ground or above ground in

buildings of their clients.

[3] As a result of complaints relating to the services rendered by SANS 1475 Part 1 and

2 Permit Holders , the second respondent issued a letter dated 22 November 2012 'IBR6'

outlining the process to be engaged by them to verify whether the services by the permit

holders at their client's premises complied with the SANS Specifications. According to the

applicant the second respondent had only focused on annual audits to ensure compliance

with SANS 1475 in respect of services conducted at the workshops of the permit holders.

The applicant contended that it was not seeking to circumvent its obligations under SANS

1475.

[4] It is a requirement that the equipment to be refurbished is 'restored to its original "as

built" standard. In order for such appliances and equipment not to constitute a hazard to

users, the applicant is required to comply with certain standards embodied in documents

published by the second respondent in Parts 1 and 2 of the South African National Standard

("SANS") 1475-1: 2010 annexed as "IBR3" and SANS 10105-2: 2010 annexed as "IBR4".

The applicant averred that it was aware of the potential danger in poorly maintained

equipment. However, the second respondent had always been aware of the problems

encountered by the permit holders, that it was impossible to perform the requirements as

prescribed in SANS 1475-1 and 2 and that if such requirements are unclear or ambiguous,

sanctions could result in either fines being imposed or 'the removal of its licence to conduct

business'.

4

[5] In pursuance of establishing technical standards and safety measures in the fire

fighting industry, the policy of the first respondent requires that all newly manufactured fire

fighting equipment and individual components to be homologated before being offered to

suppliers for sale to consumers. The applicant avers that as soon as homologation has been

completed and approved the second respondent receives "detailed drawings containing inter

alia exploded views, descriptions of componentry in respect of the equipment that has been

homologated and component identification." The same applies to situations where there are

design changes in the homologated product. The applicant avers that the records of the

second respondent were compiled during 1980 and that 'no substantial revision or update

thereof has taken place since then.' In so far as the refurbishment of fire fighting equipment,

was concerned the applicants are at a disadvantage because various manufacturers no

longer have presence in South Africa. Due to unavailability, the fire protection industry is

obliged to import complete components, or components or spare parts for purpose of

refurbishment.

[6] The applicant sought to illustrate the functions it was required to perform, and the

internal workings and componetry of a hand held fire extinguisher it is accredited to refurbish

or service by annexing 'IBR6', which is an Installation, Operation, Maintenance and

Recharge Manual NO. 05602 published by an American manufacturer, Amerex Corporation.

According to the applicant it has to ensure that the extinguisher complied with the various

requirements 'in order not to constitute a danger to the user and or general public and where

it is found not to be compliant the user is obliged to acquire a replacement unit.

[7] Component replacement must comply with the "as built" criterion, failing which the

fire extinguisher 'cannot be returned to service'. If it is returned to service both applicant and

the user run the risk of criminal sanction for non compliance with SANS1475 - 1, irrespective

of whether the extinguisher functions properly or not. In the absence of a supplier of the

original equipment, refurbishment will entail sourcing substitute components, which in

5

themselves are not necessarily substandard, from reputable suppliers and this will cause the

applicant to deviate from the provisions of SANS 1475 Parts 1 and 2.

[8] According to the applicant it is not possible to obtain components for equipment of

manufactures who are no longer active in the market, however it is capable of locating

spare parts 'manufactured by reputable suppliers, from reputable sources. Tests are

conducted by skilled and experienced personnel who use reliable equipment which is

'regularly calibrated to ensure accuracy of each test conducted', thereby producing a

component which does not strictly comply with SANS 1475 Parts 1 and 2. The applicant

proposed an alternative to be considered by the respondents which is 'to conduct a thorough

and on-going review of the provisions to update information in their records and to make

provision to allow alternative suppliers of components which are not readily available in the

industry.

[9] The second respondent averred that the relief sought by the applicant was not

competent because it was not the custodian of the standards, specifications and

requirements of the original manufacturers. Furthermore, it denied that it was responsible for

the determination and enforcement of national standards, which was the function of the

South African Bureau of Standard "SASS". It was only responsible for the administration of

the SASS Mark. The applicant was the holder of a SANS 1475 Mark Permit, and it was

compulsory for holders of such permit to comply with its requirements until such time that

SANS 1474 is reviewed, set aside or amended.

[1 O] The second respondent contended that there were other interested parties, as seen

from a list annexed to the opposing papers, who were fully compliant and that it was not

competent for the second respondent to enforce alternatives as suggested by the applicant.

Where the fire extinguisher cannot not be serviced or refurbished to be fully operational to

6

the standards of the original manufacturer , such fire extinguisher could not be modified but

had to be replaced and this included fire extinguishers in buildings that were serviced by the

permit holder. This usually occurred where the manufacturer is no longer available or where

the correct components can no longer be sourced.

[11] 'IBR6' was meant to address complaints received by the South African National

Accreditation Scheme ("SANAS"). The fact that there was no evidence to show that permit

holders complied with the prescribed original manufacturers specifications, when servicing or

refurbishing a fire extinguisher, a process of implementation which did not introduce new

specifications was introduced, which entailed (a) an on-site service verification checklist (b)

a workshop audit to ensure compliance with SANS 1475 (c) an on- site audit and inspection

of selected buildings which are serviced by the permit holders.

[12] The second respondent contended that the applicant's objection to this process was

not justified because, the process ensured that such fire extinguishers handled by the permit holders did not constitute a 'potential hazard to users thereof' and, that where there was non-compliance 'remedial measures could be implemented'. According to the second

respondent and in as far as the "as built" criterion was concerned, as soon as foreign

components were installed into a fire extinguisher that was being serviced or refurbished,

safety of the product could not be guaranteed and 'the resultant product is no longer the

one which has been approved by the second respondent for use in fire-fighting and does

not deserve to carry the second respondent's certification mark". The second respondent

contends that the "as built" requirement does not mean that the applicant is strictly required

to source the components from the original manufacturer, it is the component which must

conform to the specifications of the original manufacturer.

[13] The second respondent denied that there was difficulty in compliances with SANS

1015 Part 1 and 2 or that there was ongoing difficulty in establishing specifications 'to fire

fighting and suppression' in buildings or that the information regarding longstanding buildings

7

was not available. According to the second respondent SANS 10105 deals with the

'requirements for site control and placing or mounting of fire extinguishers; SANS 10400 Part

T deals with 'requirements for fire protection measures and equipment for different

occupancies in building; SANS 10139 deals with 'requirements for installation of detection

and alarm systems; SANS 1450 deals with ' requirements for different suppression systems;

SANS 10287 deals with ' requirements for sprinkler systems in building. The standards

required for all fire-fighting equipment installed in buildings is regulated by SANS

10400 Part T.

[14] The second respondent does concede that there may be various reasons why

owners or tenants of buildings may not be in possession of the original standards defined by

the manufacturer, and in such instances it is also admitted that the applicant as service

provider may not have such information available or only becomes aware of what is required

when called upon to render the service. It is contended that the applicants had a duty to

obtain the original manufacturer's service and maintenance requirements where it had

agreed to offer such service and, where it cannot obtain such information it should not

service the equipment, otherwise it would be in contravention of SANS 1475.

THE LAW

[15] The applicant would be entitled to relief if it has satisfied the court that it has made

out a case in terms of prayer 1, being, to compel the first and the second respondents to

make available to the Applicant "all original manufacturers standards, specifications and

requirements as set out in SANS 1475 Parts 1 and 2 and, in terms of prayer 2, whether it

has satisfied the requirements for an interim interdict.

8

[16] Despite the fact that the first respondent has not opposed the application, it is

important to deal with some of the provisions of the Occupational Health and Safety Act

85 of 1993 ("OHASA") and, regulations which are relevant to the administration of health

and safety standards in the business of the applicant. Another reason in adopting this

approach is because the applicant queries the locus standi of the deponent to the answering

affidavit. It was submitted by counsel for the applicant that some of the averments were 'far­

fetched and absurd'. Instead of the Court disregarding the content of the said affidavit, it is

has a duty to look at the law.

[17] The South African Bureau of Standards ("SASS") was established in terms of Act

24 of 1945 and presently operates under the Standards Act 29 of 2008 ("the Act"). It is a

member of the International Organization for Standardization and is accredited by the

South African National Accreditation System (SANAS) and the Raad voor Accreditatie

of the Netherlands. SANAS was established by section 3 of the Accreditation for

Conformity Assessment, Calibration and Good Laboratory Practice Act, 2006 (Act 19

of 2006)

[18] The South African National Standard (SANS) is defined in the Act as " a standard

approved by the SABS' and, section 5 (5) thereof provides that : "The SABS may establish

one or more companies to perform any of the functions of the SABS in terms of this Act,

except the setting of a South African National Standard in terms of sections 23 and 24."

The second respondent was established to administer the standards approved under the

Act.

[19] The applicant is holder of a SANS 1475 Mark Permit which requires him to comply

with 'all the requirements and permit conditions of SANS 1475. When a permit is applied for

an applicant makes a declaration of compliance which states the following on the application

form for a permit:

"The undersigned declares that he/they is/are fully conversant with and intends to

comply with the provisions of the relevant SANS Specifications, General Permit

Conditions and the Specific Conditions pertaining to Permit, Permit Fees and the

SABS Mark Permit(s) issued there under"

My understanding is that a permit is issued for a particular commodity bearing the

SABS Mark, or bearing a 'mark of a certification body in compliance with SANS 1910'. The

applicant is a Mark holder and as contended by the applicant, it is required that there be

accreditation to service, refurbish, certify and inspect the particular fire fighting commodity

The applicant is accredited to render services either at it 's own premises or at the premises

of a client .

9

[20] The second respondent occasionally conducts audits of the applicant's services and

this intention was communicated to the applicant in a letter to all SANS 1475 Part 1 and 2

Permit Holders on 22 November 2012. The concern raised in such letter was prompted by

numerous complaints 'regarding to non-conforming service provided by SABS Permit

holders for the Servicing of Fire Extinguishers'. The letter stated further that it had been the

accreditation body SANAS, which had 'registered a major non-conformity' against the

second respondent, in that no process was in place from which to verify the services

rendered by the permit holders. According to the second respondent its records reflected

that it had in the region of about 500 service providers.

[21] Section 4 of the Act provides:

"(1) The objects of the SABS are to-

( a) Develop, promote and maintain South African National Standards;

(b) Promote quality in connection with commodities, products and services;

and

(c) Render conformity assessment services and matters connected

therewith.

(2) Jn order to achieve its objects, the SABS may-

( a) develop, issue, promote, maintain, amend or withdraw South African

National Standards and related normative publications serving

standardisation of needs of the South African community;

10

(b) provide reference materials, conformity assessment services and related

training services in relation to standards, including a voluntary SABS Mark

Scheme proving assurance of product conformity;

(c) ...... ;

(d) ... .. ;

(e) ... . ;

(f) ... .. ;

(g) provide information services to deal with enquiries about standards,

handle the sale and distribution of South African National Standards and

related publications, as well as similar publications from international and

foreign bodies;

(h) .. .. ;

(i) provide a research and development programme in terms of the need for

new standards, improvement of existing standards, ..... . .

(j)

(k) ..... ;

(I) use technical committees to develop and amend South African National

Standards. "

[22] The thrust of applicant's complaint is the requirement that the commodity so serviced

be reinstated to "original extinguisher manufacturing standard." In argument for the applicant

the following questions were raised : (i) what is meant by original standard (ii) how must

11

applicant deal with these requirements when the original standards are either not known or

have lapsed due to discontinuance of the product or the fact that the original manufacturer

has gone out of business. The applicant contended that only 13 out of 23 brands are no

longer represented in South Africa.

[23] An analogy was made relating to motor vehicles where the original manufacturer was

no longer in business and original spare parts unavailable. It was suggested that the issue of

safety would not apply where the vehicle was being serviced by 'a reputable and licensed

repairer using modern compatible parts. It was argued that where buildings were involved

and because of effluxion of time, it would be impossible for the applicant/ client I landlord /

developer / builder / architect, to obtain or have in its possession the original manufacturer's

specifications.

It was submitted that the defence put up by the second respondent that fire

extinguishers which could not be serviced to original standard be replaced was ' dictatorial,

bureaucratic, impractical and made without understanding of the impact upon the applicant,

and without the second respondent directing as to who bore the duty to inform the user.

[24] It was argued for the second respondent that those servicing and reconditioning fire

extinguishers can only do so in accordance with the requirements, specifications and

standards of the original manufacturer as contemplated by the National Standard, and that if

the original components for the fire extinguisher are unavailable or where the manufacturer

was no longer active, the fire extinguisher cannot be serviced by the applicant. It was argued

that the customer/user must bear the consequences because the applicant was not by law

compelled to render such service if it is impossible to perform. In such instance the remedy

was for the equipment to be taken out. Another remedy was for the applicant to challenge

the validity of the National Standards and to have them reviewed and set aside.

[25] It was submitted that the Court could not grant an order exempting the applicant

from complying with the National Standard where there was no provision allowing for such

exemption. Furthermore, it was submitted that the applicant failed to mention the original

manufacturers whose specifications, requirements and standards it was seeking and, that

the second respondent was not the custodian of the information that the applicant was

seeking in prayer 1.

12

[26] In my view, a better approach to the problem of the applicant is to consider what the

first respondent has promulgated. In terms of OHASA no regulations shall be made by the

Minister except, after consultation with the Advisory Council constituted under the Act. The

first respondent has in terms of section 43 of 'OHASA" promulgated regulations necessary

in the interests of health and safety, which are relevant to the activities of the applicant.

Furthermore, provision has been made for the establishment of an inspection authority

approved by the Chief Inspector. The following definitions are relevant to the services

offered by the applicant:

• Health and safety equipment' is defined as 'any article or part thereof which is

manufactured, provided or installed in the interest of health or safety of any

person"

• Health and safety standard is defined as 'any standard, irrespective of whether or

not it has the force of law, which, if applied for the purpose of this Act will in the

opinion of the Minister promote the attainment of an object of this Act".

• Risk - 'means the probability that injury or damage will occur'

• Safe - ' means free from any hazard

• Standard - 'means any provision occurring (a) in a specification, compulsory

specification ... practice or standard as defined in section 1 of the Standards Act,

13

1993 or Amended Occupational Health and Safety Act'

[27] The Pressure Equipment Regulations, 2009, published by the Department of

Labour are therefore apposite. The Minister of Labour in conjunction with the Advisory

Council of Occupational Health and Safety has under section 44 of 'OHASA' incorporated

the health and safety standards of SANS 1475-1 and SANS 10105-1 to the regulations. In

terms of these regulations fire extinguishers fall under the definition of pressure equipment

and all pressure equipment for use in the Republic of South Africa must comply with the

conformance assessments of SANS 347 in addition to the safety standards incorporated

under section 44 of 'OHASA'. In SANS 347 pressure equipment regulations are defined in

3.1.13 as "pressure equipment regulations in the relevant national legislation for use in

South Africa and enforced by the regulatory authority. "

The SASS uses the second respondent to administer compliance and auditing of

services offered by permit holders registered under it.

[28] The pressure equipment regulations provide for the duties of manufacturers,

importers, suppliers, users and repairers. The applicant falls under the latter category. As I

see it, the primary responsibility of record keeping of the details of manufacturer of pressure

equipment rests with the manufacturer, who is required to keep original manufacturing

specifications for a minimum period of 12 years ( regulation 14(3)). The general duties of the

Manufacturer are provided for under regulation 4. In terms of 14(1) the manufacturer shall

ensure that equipment sold must be accompanied by proper instructions for the user.

The user must ensure that the 'pressure equipment is operated and maintained

within its design and operating parameters and, the general duties are provided for under

regulation 6. The user is required to keep record of services by a reconditioning organization

for a period of a least 3 years (SANS 1475).

14

[29] In as far as SANS 10105-2 the responsible person is described as the 'owner of the

building or a person appoint in writing by the owner'. Among other regulations to be

observed are the building regulations SANS 10400-T which also mention the rights to health

and safety of the public as provided in section 24 of the Constitution. On the other hand the

building regulations place responsibilities on the owner and an architect to comply with the

health and safety regulations in as far as fire fire-fighting equipment was concerned.

[30] Regulation 13 and 19 are also applicable to the applicant, for example:

Regulation 13 (1 ): Subject to the requirement of the relevant health and safety

standard into these Regulations under section 44 of the Act-

(a) Any person who intends to modify or repair any pressure

equipment shall cause such modification or repair to be carried out

in accordance with the relevant health and safety standard, and in

accordance with the assessment procedure, as specified by the

relevant hazard category as determined by SANS 347;

(b) Any modifier or repairer carrying out any modification or repair

referred to in paragraph(a) shall issue a certificate ... and certify that

such work is in accordance with the relevant health and safety

standards ....

Regulation 19(1 ): No user shall use, require or permit the use of a fire extinguisher

unless designed, construed, filled, recharged, reconditioned,

modified, repaired, inspected or tested in accordance with the

relevant safety standard incorporated into these regulations under

15

section 44 of the Act

[31] The standard documents at issue provide:

• SANS 1475-1 regulates portable and wheeled (mobile) rechargeable fire

extinguishers that have been removed from service and have been

presented for reconditioning and is not applicable to new fire extinguishers

or a reconditioned fire extinguisher presented for sale.

• SANS 10105-2 regulates fire hose reels and above ground hydrants.

In both documents under the heading Normative references it is stated

that "Information on currently valid national and international standards

can be obtained from the SABS Standards Division". In SANS 1475-1

under 3.25 working pressure is defined as such "design and.marked

pressure to which an extinguisher is charged to ensure acceptable

operation as defined by the manufacturer"; and under 4.4 Quality of

extinguishing mediums, 4.4.1 under General is provided that "All

extinguishing mediums used in the filling of extinguishers shall comply

with the original extinguisher manufacturing standard" (in addition there

must be compliances with SANS 1910 and SANS 10105-1; under 5.5.3.3

Recharging of used cartridges, 5.5.3.3.1 "When, after inspection, a used

cartridge proves suitable for re-use, recharge the cartridge with dry carbon

dioxide to the a full actual stamped on the cartridge, subiect to a tolerance

determined by the original manufacturer: under Table C.1 for providing

'Detailed maintenance procedures, in column 2 when verifying and

checking pressure " If it is not correct refer to the manufacturers

instruction for appropriate action"; under column 3 when examining fire

extinguisher externally "refer to manufactures instruction. .. (my

underlining)

16

INTERIM RELIEF

[32] In order to be successful the applicant must satisfy the following trite principles and,

in deciding whether or not to grant relief the Court must apply such principles in a way that

promotes the objects, spirit and purport of the Constitution:

(a) A prima facie right to the relief sought even if such relief is open to doubt;

(b) A well grounded apprehension of irreparable harm if the interim relief is not

granted;

(c) the balance of convenience must favour the grant of the interdict; and

(d) the absence of a satisfactory remedy

Prima Facie Right

[33] The applicant has failed to provide the following details (a) the identity of the brands

of fire extinguishers affected; (b) the year of manufacture (c) the reasons why the information

required cannot be obtained from the manufacturer , importer, supplier, user, owner,

especially where the manufacturer is obliged to keep the original manufacturing details for a

minimum of 12 years. As I see it, and having regard to the provisions of "OHASA" and the

applicable regulations, the applicant seeks a complete suspension of the duty of oversight by

the regulatory body as required in SANS 1475 Parts 1 and 2, until it is provided with the

necessary specifications and requirements to enable it to service its clients. I assume that it

means that in the meantime, it be enabled to recondition the fire equipment according to the

alternative measures suggested.

The legislation as dealt with above is very clear on who bears the responsibility to

ensure that the original manufacturers specifications and requirements are made available

17

for purposes of executing such services as provided in SANS 1475.

[34] According to the second respondent there were about 500 holders of the SASS Mark

Permit, the applicant being one of them. It does not seem that the applicant has been

supported in this application by the other permit holders neither has the applicant sought to

review and set aside the regulations. The Legislation as dealt with above does not seem to

give the applicant any choice but for it comply with the legislation and regulations, OHASA

does however provide for exemptions by the Minister. It is not clear to me in which instances

this would be applicable, I however doubt that such exemption if granted could be given at

the expense of the purport of the Act..

[35] Besides the right which SASS Mark Holders may have to provide services to others,

to conduct their businesses, OHASA promotes health and safety in the workplace and

seeks to protect any person who may be exposed to hazardous equipment such as fire­

fighting equipment. It is therefore not only the applicant who has an interest, it is employees,

and members of the public. In SANS 1475-1 4.7.2.3 the "relevant safety legislation" is

OHASA. In the introduction to SANS 1475 a fire extinguisher is described as a "major first­

aid article available for private and industrial application. It is imperative that this product

always be readily available, usable and in sound operating condition".

[36] SANS 1475- 1 is replete with requirements for safe working practises and warnings.

For example, with regard to the Halon extinguishers SANS 1475 -1 5.2.4, reconditioning in

accordance with the manufacturers specification is required, unless exempted from

pressure testing by the Department of Labour. Furthermore, the reconditioning of these

Halon extinguishers must in addition comply with international standards, the Montreal

Protocol of 1987, which provides for the phasing out of commodities which contain

substances which deplete the ozone layer. South Africa is a signatory to this international

protocol. It is therefore clear that it is more than the relationship between the applicant and

its clients that needs to be considered, and that the remedy for the applicants would be for

the standards to be reviewed and set aside. I am therefore not satisfied that the applicant

has established a prima facie right.

A well grounded apprehension of irreparable harm and Balance of Convenience

[37] In considering the above the following aspects need to be considered (a) does the

applicant have a well grounded apprehension of irreparable harm (b) are there any rights

18

of others protected by the Constitution and whether the grant of interim relief would interfere

with such rights (c) whether the grant of interim relief would interfere with the function of

government which has the statutory duty to deal with health and safety matters. Again, I

have to consider whether there are sufficient facts to enable me to assess whether the rights

of others to a healthy and safe environment will be harmed or not, by the grant of interim

relief.

[38] In terms of section 24 of the Constitution every member of the public has a right to a

safe and healthy environment and the duty to safeguard such right is placed on several

government departments, the department of Labour being only one of them. The preamble

to OHASA protects those at work but extends such right of protection against hazard to all

members of the Public. Where the reconditioning of fire extinguishers is concerned SANS

1475 and SANS 10105 are very important documents and the contents thereof are legally

binding in that same has been incorporated into the Pressure Equipment Regulations. Any

interim interference with such rights must only occur in exceptional circumstances and upon

adequate facts being given by the applicant to justify such interim interference.

[39] In the founding affidavit, for example, the applicant in paragraphs 44 and 45

addresses the problems often encountered in having to comply with SANS 1475, SANS

10105 Parts 1 and 2, in as far as there is difficulty in establishing specifications pertaining to

19

the installation of fire -fighting and suppression equipment in buildings . An important factor

to consider is that no duty is placed upon the applicant to keep the original records of the

manufacturer. It is the user, the owner, the manufacturer who has such duty to keep such

records. If such information is not available then there is an obligation on those who are in

occupation of a building to ensure that the fire extinguishers therein installed are regularly

serviced and comply with the regulations. The applicant by being accredited to service a

particular brand or component is expected to have available such information and where it

has serviced or reconditioned fire-fighting equipment it must keep proper record, avail a copy

to the user who is obliged to keep such service or reconditioning record for a minimum of

three years.

[40] Furthermore SANS 1475 and SANS 10105 provides that the SASS through its

Standards Division and Standards Information Centre can provide the 'currently valid

national and international standards. ' It seems that in certain instances this information is

obtainable at a fee and is subject to copyright. I see no reason why the applicant cannot

obtain such information itself. Although there may be problems encountered by the

applicant, it is legally bound to comply with the requirements until they have been set aside.

The Court can therefore at this stage not interfere with standing legislation. Even if it was

anticipated that an application for review would be launched, the court would still be duty

bound, on the facts, to give consideration to the doctrine of separation of powers. In my view

the applicant has therefore failed to satisfy the above requirements for an interim interdict.

The absence of a satisfactory remedy

[41] Having determined that the applicant has not satisfied the three preceding

requirements for an interim interdict it is not necessary to give consideration to the above

mentioned requirement.

[42] In the result the following order is given:

1. The application is dismissed with costs

TLHj~~v-(JUDGE OF THE HIGH COURT)

MATTER HEARD ON

JUDGMENT RESERVED ON

ATTORNEYS FOR THE APPLICANT

1ST RESPONDENT

2No ATTORNEYS FOR THE RESPONDENTS

26 APRIL 2016

26 APRIL 2016

R C CHRISTIE

INCORPORATED

THE STATE ATTORNEY

GILDENHUYS MALAT JI INC.

20