Must I fence my pool?

A client asked me: “Please can you let me know what is the 'law' regarding a fence around a swimming pool. Is it the landlord’s responsibility or the tenant residing at the property? Is it the law to have a fence around a swimming pool or is a pool net sufficient?

The National Building Regulations require that an owner of any site which contains a swimming pool must ensure that access to such swimming pool is controlled per standards laid down by the South African Bureau of Standards.

In terms of the Measures for Private Swimming Pools By-laws for the City of Johannesburg Metropolitan Municipality, an owner of a swimming pool or swimming bath, must:

• surround it with an enclosure (a wall or compliant steel fence) that must consist wholly or partially of a wall that is so situated, constructed and maintained that a child under the age of seven years is not able to climb over, crawl under, squeeze through such enclosure or any door gate forming part thereof, or otherwise gain access to the swimming pool on its own; and
• ensure that every door or gate forming part thereof fitted with a self-closing and self-latching device which is inaccessible to a child under the age of seven years and which must be maintained in good working order; or
• alternatively, fit the pool with a compliant pool net, and ensure that the pool is completely covered by the pool net always when the pool is not being used;
• not allow any child under the age of seven years to have access to or to use the swimming pool unless such child is always under the direct and personal supervision of a person eighteen years or older.

This applies equally to the owner of a fixed property and the body corporate (in relation to a swimming pool situated on the common property of a sectional title scheme) or the registered owner of a unit in a sectional title scheme who has a right to use a swimming pool in his exclusive section.

The By-laws define “swimming pool” as a privately owned permanent excavation or structure situated at, below or not more than 1m above ground level in the case of an outdoor swimming pool or at, below or not more than 1m above floor level in the case of an indoor swimming pool that is used or is intended to be used for swimming, and can contain at any point, water to a depth of more than 300mm.

In special circumstances, the Council may on written application by an owner of a swimming pool, on a prescribed form, and on such conditions as it may consider expedient, exempt such owner from having to comply with the by-laws if the Council is satisfied with the sufficiency of other measures of protection against accidental injury and drowning which are in place or will be put in place in respect of the swimming pool concerned.

Any person who fails to comply with these by-laws is guilty of an offence and liable on conviction to a fine or in default of payment to imprisonment for a period not exceeding six months.