This is probably one of the questions most often asked by landlords who have defaulting tenants in their leased premises. The question of course, when answered by a lawyer, is that it depends on the circumstances.
Firstly, water may never be disconnected, as all people living in South Africa have a constitutional right to water – this is provided for in section 27(1) of the Constitution. Therefore, even if a tenant fails to pay for its water consumption charges, such water services may not be disconnected. The answer is to manage this debt like any other: take action early on, when the arrears are still low and manageable, which action may include cancellation of the lease if appropriate. Even a municipality may not disconnect the water supply to a property without following the proper procedures set out in, amongst others, the Water Services Act, 108 of 1997. This was dealt with comprehensively in the case of City of Cape Town v Strumpher 2012 4 SA 207 (SCA).
With regard to electricity, the question is more complex. The easy answer is that, if a tenant is on a pre-paid electricity system, it will not be necessary to disconnect the electricity supply. If the tenant fails to make payment of rentals and related charges, at least the landlord will not be subsidising the electricity consumed by the tenant. If the tenant buys its prepaid electricity directly from the landlord, the landlord could, in appropriate circumstances, appropriate payments received for electricity toward the rental amounts that are in arrears – in these circumstances it would be prudent to seek advice from your attorney to ensure that appropriation is allowed and that it is done correctly.
If the tenant is obliged to reimburse the landlord for electricity consumption charges, the landlord may not, of its own volition, disconnect the electricity supply when the tenant is in arrears. The correct way would be to obtain a court order allowing for such disconnection, in which case the landlord will have to prove that it will probably suffer irreparable damage if the electricity supply is allowed to continue, normally by showing that the likelihood of recovery is extremely slim.
The landlord may not take the law into its own hands and disconnect the utilities without the appropriate court order. This will amount to “self-help” and our courts will never condoned self-help. The reason for this is clear: if every person in the country were to take the law into their own hands to do as the please, we will, before long, have a chaotic society where everyone does as he or she pleases. Therefore, the courts take a very strict view against persons who take their own, unlawful action. Remedying such self-help is, by its nature, urgent, and the courts will normally hear these orders to prevent or correct self-help, called spoliation orders, on an urgent basis. Furthermore, at the stage that these applications are heard, the court is not concerned with the question of the lawfulness of the tenant’s actions or failures. The only two questions the court will consider are the following:
· Was the tenant in peaceful and undisturbed possession of electricity supply before the disconnection?
· Was the disconnection done unlawfully, i.e. without a court order?
If both of these questions are answered in in the positive, a spoliation order will be granted, and the landlord will be order to resume the electricity supply and pay the tenant’s costs occasioned by the litigation.
Therefore, where a tenant is in arrears with the payment of utility charges, it is prudent to seek legal advice earlier rather than later, whilst the arrears are still manageable, so that the correct process of dealing with the matter may be decided upon and then carried out. In this way, it is possible for the landlord to avoid subsidising a non-paying tenant with tens of thousands of rands of consumption charges, with the resultant difficulty of having to take legal action to recover those arrears.