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YOU, THE NHBRC AND OWNER BUILDER EXEMPTION

SOUTH AFRICA, JUNE 2016
THE QUESTIONS
The question is what is an owner builder and how can I be one?
Other questions arise as to whether it is a good thing or not to be an owner builder it is not the scope of this short
paper to venture there.
The answers are not very straight forward, hence a little introduction.
INTRODUCTION
Two ways
There are two main courses for the private individual to approach the building of a new home [for residential
purposes] in South Africa.
The one, which is followed by the majority, is to have it built by a building construction firm or builder.
The other option is to manage the building process yourself as an owner builder.
Take note from the outset, a home builder and an owner builder are, according to the Act [see following] NOT the
same. It is important to clearly distinguish between the two.
General comment
As in most countries, there are a plethora of rules and regulations in the building industry, most of which are to
ensure safety, and that is very good! It is when this process, like any other, becomes politicized for whatever reason,
that it ceases to be in the interest of the individual it was meant to benefit. Some of the rules and regulations, be it
on local or central government level, not dealing with safe building standards are aimed at repairing so-called
injustices, reform, transformation etc. in other words they have NOTHING to do with building per se but are
artificial burdens placed on the individuals right of expressing his constitutional freedom to erect a habitable
construction. Constitutional being in inverted commas as the values it represents are ravaged by the very people
who used it to attain their present status.
THE RELEVANT ACT
The main legislation regulating the home building industry is the HOUSING CONSUMERS PROTECTION MEASURES
ACT, NO. 95 OF 1998, as amended [the Act].
The Act, as well as present case law [rulings in court cases], deems anybody building a home by default to be a
home builder.
The definition of home builder in the Act is:
home builder means
(a) a person who carries on the business of a home builder; or
(b) an owner builder who has not applied for exemption in terms of section 10A;

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[Definition of home builder substituted by s. 1 (c) of Act No. 17 of 2007.]
Next question, what is meant by the business of a home builder, the answer as per the Act is:
business of a home builder means
(a) to construct or to undertake to construct a home or to cause a home to be constructed for any
person;
(b) to construct a home for the purposes of sale, leasing, renting out or otherwise
disposing of such a home;
[Para. (b) substituted by s. 1 (a) of Act No. 17 of 2007.]
(c) to sell or to otherwise dispose of a home contemplated in paragraph (a) or (b) as a principal; or
(d) to conduct any other activity that may be prescribed by the Minister for the purposes of this
definition;
[Para. (d) substituted by s. 1 (b) of Act No. 17 of 2007.]
As you can see, things start to get complicated and rather murky for the layman things will even get worse, for
not even all members of the National Home Builders Registration Council [NHBRC], which is established by this Act
and is tasked to implement its regulations and especially its main strategic mission as stated by the Act, i.e. To
make provision for the protection of housing consumers... either know what should be done or live up to the
mission statement by their actions.
So what or who, according the Act, is an owner builder?
owner builder means
(a) a person who builds a home for occupation by himself or herself; or
(b) a person who is not a registered home builder and who assists a person contemplated in
paragraph (a) in the building of his or her home;
[Definition of owner builder inserted by s. 1 (g) of Act No. 17 of 2007.]
Note the term registered home builder above, for as we have stated, everybody is deemed by default to be a
home builder if he builds a home, BUT not everybody is registered with the NHBRC; not being registered when
building a home is a contravention of the Act note the building industry is saturated with fly-by-nights and in
essence this registration is an effort to protect the buyer of a home.

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In practice it means that Joe Soap, although he might be able to build his home, cannot do so
1. Unless he has it done by a registered builder [home builder], or
2. Has himself registered with the NHBRC as a registered home builder or
3. Gets exemption from being regarded as a home builder in order to become an owner builder.
In order for your home to be enrolled [registered with the NHBRC] it must be built by a registered homebuilder.
Such a home builder must be registered with the NHBRC, pass a frighteningly easy multiple choice open book
technical exam, attend a just as superficial induction course and pay certain fees to the NHBRC. The enrollment
fee, which the owner must cough up, is at present 1.3% of the value of his property PLUS the estimated value of his
home. At present a ceiling of R34000 is put on this fee.
What you must get from the NHBRC to be an owner builder is exemption from being bound by the terms of the
Act, in other words you must NOT be the default home builder whilst building your home. As such you do not
have to pay the enrollment fee etc. BUT there are still things you must and must not do.
The statutory basics for getting exemption
Let us first have a look at the process an individual has to embark upon to apply for exemption.
This process, although mentioned in the Act, is not described there [well get there on the next pages]:
10A. Owner builder exemption.
An owner builder may, in terms of section 29, apply to the Council for exemption from sections 10 and 14.
[S. 10A inserted by s. 4 of Act No. 17 of 2007.]
Ok, lets look at sections 10 and 14 and also 29:
10. Registration of home builders.
(1) No person shall
(a) carry on the business of a home builder; or
(b) receive any consideration in terms of any agreement with a housing consumer in respect of the sale or
construction of a home, unless that person is a registered home builder.........
and section 14 deals with enrolment:
14. Enrolment.
(1) A home builder shall not commence the construction of a home falling within any category of home
that may be prescribed by the Minister for the purposes of this section unless....
As we see, exemption from sections 10 and 14 places you, for all practical purposes of the specific project, out of
reach of the Act and the NHBRC.
Section 29 reads:
29. Exemption.
(1) The Council may, on application made to it in the format prescribed by the Council by notice in the
Gazette, in exceptional circumstances and on the conditions that the Minister may prescribe in general or

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in any particular case, exempt a person or a home from any provision of this Act, if the Council is satisfied
that
(a) the granting of the exemption would be in the public interest;
(b) the granting of the exemption would not undermine the objectives of this Act, or the effectiveness of
the Council; or
(c) should the exemption not be granted, the effect would be extremely prejudicial to the interests of the
applicant and housing consumers.
(2) The Council shall reach and make known a decision within 60 days of receipt of an application made to
it.
(3) An exemption contemplated in subsection (1) is not transferable.
[S. 29 substituted by s. 11 of Act No. 17 of 2007.]
Now that we have a little bit of statutory background, which although sometimes hard to understand, seems pretty
clear, lets get to the nitty-gritty of the real life process of applying for owner builder exemption.
THE REAL LIFE EXEMPTION PROCESS
[Note: In ALL communication regarding your exemption process, note whom you spoke to, what they said, the
date and the time. Also retain ALL documentary information, always use couriers, not registered post, and keep
copies.... you never know]
First off note that NOTHING on this process is mentioned on the NHBRC official web site, http://www.nhbrc.org.za ,
neither could anyone at the NHBRC offices be found who could walk you through the application process, never
mind providing you with a manual.
You will also notice that the all-important manuals which must be used for study and writing the technical open book
exam are out of print and not available anymore [being nearly two decades old], they must be borrowed from the
NHBRC and handed in again the new manuals, the announcement of which were made during a costly function
during 2015, are not available yet and even if you have a set, the multiple choice exam templates might still be based
on the old books and cannot be used! [Regarding the manuals see later]
Get the forms and complete them
This is easier said than done as these forms are not obtainable through the internet, they must be requested from
the provincial NHBRC office where you live http://www.nhbrc.org.za/contact/ , as they have to be handed back to
them. It is no use getting the forms from the NHBRC head office for if they differ in looks, although the content may
be the same, your local office might reject them.
[But do not despair, some documents are attached.]
Also, use the worst case scenario attitude. Provide MORE documents than are called for, for instance if they request
a marriage certificate, send them a copy of your antenuptual contract PLUS a copy of the marriage certificate. The
MORE-attitude should NOT be reflected in answering their questions though. Just state what is asked. Remember to
keep written things plain and simple and UNAMBIGUOUS!
Remember to have ALL documents certified as true copies of the original by a commissioner of oaths, where this is
not applicable, i.e. if you write a motivation, have it sworn to be the truth in front of a commissioner of oaths, like a

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police official. Make sure the official puts the correct stamps on your documents and not just the SAPS station date
stamp some of them do not know the difference between a certified copy and a sworn statement [affidavit], take
our word for it!
Prior to handing documents to the NHBRC scan them or make a set of decent photocopies!
Also remember to sign each page you hand in, if your spouse or another person co-owns or has a stake in the
project, like being joint owner of the property you want to build on, let them sign every page of the application.
The NHBRC documents to be completed are attached.
Apart from those you will have to provide photocopies of ID/s, other requested certificates like marriage [also send
ANC if married, otherwise they might assume your spouse is super-rich, why should they even consider your
application... dont laugh, everything is based on real life here]. Copy of title deed and maybe even a copy of the
architectural/engineer drawings of your home, preferably already approved by your municipality.
Then comes the motivation. The NHBRC is very vague about its contents Please ensure that the motivation affidavit
reflects all details pertaining to the project inclusive of who will do the actual physical building of the house, and so
forth the last three words are the snag.
Remember that there even is vagueness about who may help you in the building process for one; no registered
homebuilder may help you. But what about your friend who has labourers available from his farm as the harvest is
in and they have a month or so at hand. Many of them might know how to lay bricks and can weld. Must your friend
register as owner builder in order to assist you? According to some at the NHBRC yes, according to others no so
where to now? According to one of their forms such help must register as owner builder but what about you...
where does one draw the line between assistance, helper etc. here we cant help due to the differences of opinion.
See the Owner Builder Training Manual- Annexure D, SPECIAL POWER OF ATTORNEY which is also attached.

But back to the motivation.

Some points to stress:
Your desire to build.
Your financial ability to finance the project dont tell them you have R4m in reserve if the project will only
cost R1,2m there is good reason to believe that sentiment for the capitalist is thinly spread.
Your knowledge and past building experience, be it hands-on or managing a project, name examples make
sure to note that the scope of these project did not necessitate registering as a home builder, if it is so,
otherwise it might be held against you that you did not register.
The fact that plans have been approved and that professional architects/draughtsman/engineers are
involved and that your project conforms to National Building and municipal regulations.
If you do not speculate in property and this home is not for speculation, include the thought, also mention if
you have ever been involved as registered home builder or have in the past been granted exemption.
The fact that local municipal inspectors as well as your structural engineer will regularly inspect progress in
order to approve compliance to NBR standards and that as it progresses these competent persons [thei
Acts word for professionals the rest of us are incompetent?] will verify and sign-off sections as the
project nears completion.
Mention that you will occupy the home for at least 5 years or if you build it for retirement purposes.
Mention your intent NOT to sublet etc. the house or part thereof for 5 years and that in light thereof
enrollment [as stated in the Act] is not necessary as you take the risks of defects on yourself.
If the home will be using eco-friendly technology like rain water harvesting and photovoltaic panels or a
wind turbine mention it after all, it is in vogue and best of all pc.
If your project can generate an income for local lesser privileged members of society and generate some
employment, albeit temporary, indicate such.
State if you have applicable professional background and/or qualifications and time periods of applicable
experience.
Name the persons who will assist you as well as the plumbers and electricians.
If you have a contact at the NHBRC you liaise with, request them to peruse the motivation and let you know
if there is something lacking.

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The next step
Scan or otherwise copy them for record purposes AFTER having them certified etc.
Take all the documents, double check them and put them in a logical order in a folder.
Get hold of the manuals and go through them. If you cant buy them at your local NHBRC, borrow them from them
or borrow from one of their inspectors or from a building contractor. But take note, if the NHBRC has rolled out the
new manuals, buy a set and prepare to use them for the exam!
As soon as you are ready, go to your nearest NHBRC office, hand in the documents and make a note of date and time
and name of person to which you gave them. Whilst youre there, write the open book, multiple choice exam.
Usually there are four sets of paper from which they will pick one for you. As soon as youre finished they will mark it
and tell you your percentage. 50 plus is pass. If you dont pass go again soon, there is no limit on your trying again;
but if you fail the second time rather get someone else to build your home.
Go home and relax!

CONCLUSION
It should be plain that the exemption process is not one actively assisted by the NHBRC, for it, although being part of
the Act they are charged to administer, is not only kept from their web site, but is also shrouded in ambiguities and
unnecessary red tape.
One reason might be that they not only miss out on the enrollment fee but also on any potential grip on you as a
person, for their inspectors have no say over your project, and if found on site uninvited, are technically trespassing,
a criminal offence.
The processing of exemptions is slow and waiting for at least three months for an answer seems more the rule than
the exception. Be prepared that they check into your financial, mortgage [bond] and other background - they are
also known to investigate your and your spouses or partners property history via deeds office searches asking the
question ...why should we consider your application favourably when you have other properties. There is no
regulation or legal prohibition against having other properties, and this kind of conduct clearly falls outside the scope
of establishing fitness to get exemption or not.
You might provide them with a good application and pass the open book exam with flying colours, still you have to
wait, wait and wait whilst building prices escalate. The NHBRC meetings during which exemptions are being
discussed are held very infrequently [once every three months] and are known to have been cancelled for no
apparent reason, thus being prejudicial towards your interests, you, the consumer, making a mockery of the stated
raison d'tre of the Act To make provision for the protection of housing consumers...
The bottom line is, be more than prepared, get your ducks in a row, be patient and allow for 4 to six months for
this process to play itself out. During this time material and labour cost will escalate, so we would suggest
requesting exemption very early in the whole home building process.

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We are on Facebook

this is a pro forma from a nhbrc office

informing you how to apply for exemption.
__________________________________________
__________________________________________
__________________________________________
__________________________________________

Mobile Number:

_____________________

Telephone Number:

_____________________

Fax Number:

_____________________

your data here,

include email!

Date:_____________________________

Dear Madam/Sir

OWNER BUILDER APPLICATION ERF NO: _______________________________________

Thank you for your enquiry concerning the procedure of applying as an owner builder.
Please note that when applying, you would need to forward the following documentation to the NHBRC. All documents
(copies) need to be commissioned by a Commissioner of Oaths.

Identity Document
Title Deed
Motivation Affidavit (Please ensure that the motivation affidavit reflects all details pertaining to the project
inclusive of who will do the actual physical building of the house, and so forth).
Completed questionnaire, which I have attached.

Once you have completed all documentation please ensure that all documents (each page) are certified by a Commissioner
of Oaths and return these to our Western Cape office for the attention of Nomawethu Maqetuka

Please do not hesitate to contact me for any further assistance

Yours sincerely

----------------------Nomawethu Maqetuka

if you apply via a nhbrc branch rather use their form, although the
content is exactly the same, they might not accept this head office
example...

OWNER BUILDER QUESTIONNAIRE

OWNER DETAILS
Name of Owner
Telephone Number
Email Address
PROPERTY DETAILS
Street
Address
Province

ID Number
Cell Number

Town

Stand Number

The applicant being the owner of the property listed above hereby applies to be classified as an owner builder as
defined in section 1 (i) of the Housing Consumers Protection Measures Act and to be granted exemption from the
requirements of the Act as provided for in section 29.
1
2
3
4
5
6

I/We understand the implications of the exemption and my / our home not being enrolled under the
requirements of the Housing Consumer Protection Measures Act.
I/we will occupy the property and not sell the house within 5 years.
I/we am/are aware that I/we will have no warranty protection as laid down in the Housing
Consumer Protection Measures Act (HCPM Act)
I/we am/are aware that I/we may not be able to sell the home in future, as an enrolment certificate
would normally be called for, upon resale?
I/we am/are aware that the house I/we intend building must comply fully with the requirements of
the National Building Regulations Act
I/we will be fully responsible for:
- Administering the whole building project and purchasing of all building material
- Employing and monitoring artisans and labourers
- Quality of materials and workmanship
(If the answer to any of the above statements is NO, please attach explanation to this
questionnaire)
I/we will be receiving progress payments directly from the banking institution that is providing
mortgage finance. (If the answer to this statement is NO, please attach explanation to this
questionnaire)

Yes

No

Yes
Yes

No
No

Yes

No

Yes

No

Yes
Yes
Yes

No
No
No

Yes

No

The applicant indemnifies and holds free from blame the NHBRC against any claim that may arise out of the granting
of the exemption.
_____________________________________________________
FULL NAME OF APPLICANT

_________________________

____________________

SIGNATURE OF APPLICANT

DATE

Please note that this document together with your sworn affidavit should be stamped by a Commissioner of
Oath. Should you be married in community of property, your spouse is to sign this document and the
affidavit.

if you are going to supervise, manage and build,

it seems this is not necessary
Owner Builder Training Manual - Annexure D
SPECIAL POWER OF ATTORNEY
I, the undersigned,

(name of home owner)

(ID NO:)
in my capacity as the owner of the property described as (description of the property) held
under the Title Deed number (Title Deed No), in terms of section 10(A) read with section 29 of
the Housing Consumer Protection Measure Act 95 of 1998 ("the Act"), hereby nominate,
constitute and appoint:

(name of entity, registration number of entity, represented by (name of the director of such
entity, ID NO) or name of individual, ID NO:
to be my project manager or agent for the construction of the above-mentioned property in
accordance with the NITBRC's technical requirements, to complete and to do or cause to be
done whatsoever shall be requisite, as lawfully and effectually, for all intents and purposes, as I
might or could do if personally present and acting herein, hereby ratifying, allowing and
confirming and promising and agreeing to ratify, allow and confirm all and whatsoever my said
agent shall lawfully do, or cause to be done, by virtue of the power of attorney. Without in any
way restricting or limiting the aforementioned powers and authorities, I do hereby specially
authorize my agent to:

Complete the application for exemption from section 10 and 14 of the Act, to the
NHBRC; and
Appoint any contractors or skilled artisans (but no Registered Home Builders) and
supervise the construction of the above-mentioned property.

DATED and SIGNED at

WITNESS:
1.

2.

NAME OF HOME OWNER

.on this the

.day of

,20.