Imagine coming home after a long day, only to find the lights out and the water switched off. This unsettling scenario – where landlords cut off a tenant's electricity or water supply without proper authorisation – highlights a tricky legal challenge. However, despite any intimidating clauses that may feature in a lease agreement, landlords generally cannot simply leave tenants in the dark.
Some landlords include provisions in lease agreements allowing them to restrict or terminate essential services if a tenant breaches the agreement. Yet these clauses typically have no force without court approval. In Zungu v Nilgra Flats CC (2017/44199) [2017] ZAGBJHC 417 (23 November 2017), Adams J clarified that a tenant's access to electricity and water arises primarily from contract law, not statute or the Constitution – meaning the tenant there had only a personal right and couldn't automatically secure a spoliation order.
The Exception: When Utility supply is integral to possession
A crucial exception applies where the supply of electricity and water is so bound up with the use of the premises that cutting these services effectively robs the tenant of a portion of the property itself. In this circumstance, the mandament van spolie (spoliation order) protects the tenant's possession of those services as though they were part of the property.
Constitutional Considerations
Cutting off utilities can also implicate several constitutional rights, including the right against arbitrary deprivation of property (section 25(1) of the Constitution of the Republic of South Africa, 1996), the right to sufficient water (section 27(1)(b)), and the public law right to receive municipal services through an intermediary – recognised in Joseph v City of Johannesburg 2010 (4) SA 55 (CC), para 47. Furthermore, Kgwele and Others v SK Enterprise and Others (21/38077) [2023] ZAGPJHC 719 (20 June 2023) reaffirms that landlords cannot unilaterally disconnect services without a court order, regardless of any alleged breach or questions over the tenant's lawful occupation.
Public Policy Stance
Because electricity and water form an essential aspect of a tenant's possession of a property, any lease clause that purports to allow their disconnection contradicts public policy and risks being struck down. A tenant faced with such an abrupt termination can seek urgent relief, typically through a spoliation order. Simply put, the law guards against tenants being summarily plunged into the dark – both literally and figuratively.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
