This is typically only controversial in circumstances where the owner is not the occupier of the property at the time that the request for disconnection is made. At this juncture it is necessary to distinguish between two different scenarios: the first where the property is occupied by a tenant, and the second where the property is occupied unlawfully by squatters.
If the occupier is lawfully occupying the property (i.e. is a tenant in occupation of the property with the permission of the landlord) then the Rental Housing Act (RHA) will apply. This Act provides in the regulations promulgated thereto, that it is unlawful for a landlord to restrict or terminate the supply of services such as electricity and water to the property, for any reason without an order of court (save that the landlord may, in certain circumstances, terminate or restrict the supply if it is necessary in order to carry out maintenance or repairs to the property). It is important to remember that this only protects occupiers who are in occupation of the property by virtue of a lease - with the consent of the owner.
The next important law to consider is the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, called PIE. PIE protects all occupiers of residential property, regardless of whether the occupier is there lawfully or not - in other words regardless of whether the occupier has the consent of the landlord to occupy the property in terms of a lease, or if the occupier is an illegal squatter.
This Act provides that a person cannot be evicted from their home without an order of court that is just and equitable taking into account all of the relevant circumstances. This Act prescribes a relatively lengthy and costly procedure that must be followed by a landlord in order to lawfully obtain a court order evicting a tenant from a residential property. Both PIE and the RHA were created in order to give effect to the constitutional right to housing as enshrined in our Constitution.
It is important to remember that this Act applies regardless of whether the occupier of the property is lawful or not. It is absolutely critical to the issue at hand, to appreciate that PIE does not deal at all with the obligation of a landlord to supply services to a property nor does it deal in any shape or form with the disconnection of those services. This is because the disconnection of services to a property is already regulated by the RHA and the Common Law.
The Common Law provides that if a property owner or any other person unlawfully disconnects the supply of services to a property that this is unlawful and constitutes spoliation. This will entitle the occupier to obtain a court order to restore the supply of the services to the property immediately regardless of whether that occupier is in law actually entitled to receive those services or not.
Our law frowns on self help, and equates it to vigilantism, and thus regards a landlord's action in depriving the occupier of the supply of services without the occupier's consent (and without a court order) as being unlawful. The object of the law that protects occupiers in this regard (called the 'mandament van spolie') is to restore the status quo (meaning to reinstate the supply as quickly as possible) and then allow the landlord and the occupier to properly ventilate the dispute that led to the disconnection of services before a court.
1. If the occupier has a lease, then there is a contractual relationship (a lease) between the occupier and the landlord. If the occupier is not in the property with the landlord's consent, then there is no contractual relationship between the occupier and the landlord.
2. There will always be a semi-statutory, semi-contractual relationship between the property owner and the municipality (even where the owner has not contracted with the municipality for the supply of services), and if the occupier has opened a municipal account in its own name then there will also be a proper contractual relationship between the municipality and the occupier.
3. It is important to note that generally speaking municipalities will only recognise the rights of the named account holder to give instructions (e.g. in relation to the disconnection of supply) in relation to any particular account.
4. It is also very important to note that by virtue of certain bylaws (which apply in some but not all municipalities) in some instances the owners and occupiers of the property can be held jointly and severally liable for each other's debt owing to the municipality, regardless of when the debt was incurred and further regardless of in whose name the account was held when the debt was incurred.
5. Lastly, a recognised right, underpinned by our Constitution, exists, in terms of which parties are able to enforce provisions of a contract entered into freely, so long as those provisions are not unlawful or contrary to public policy. This principal is known as freedom of contract and must be given effect to if the consequences are not unlawful.
An occupier has a constitutional right not to be unlawfully deprived of their home, which as explained above, means that a person can only be evicted from their home with an order of court which is granted only when it is just and equitable in the circumstances to do so. Occupiers of a property are also entitled by virtue of the Constitution to the supply of water at the property. How much water they are entitled to for free, however, depends on the bylaws of the municipality concerned.
For example, in the Johannesburg municipal district every household is entitled to the supply of six free kilolitres per month. At present there is no right to free electricity in our law, although it could potentially be argued that the right to receive the supply of electricity at a residential property forms part of the right to housing (one must remember here, however, that the right to receive the supply does not necessarily mean the right to receive that supply for free).
A property owner has the constitutional right to not be arbitrarily deprived of his property. This is open to interpretation and could apply to countless scenarios, in which a landlord is being deprived of some or other aspect of his or her property or any one or more rights that would ordinarily flow from the ownership of that property.
If the owner can show that the deprivation is arbitrary within the meaning of the Constitution (arbitrary meaning basically that the reason for the deprivation is not rational in the circumstances, or that the harm caused by the deprivation is not proportional to the object sought to be achieved by the deprivation itself) then the property owner will have proven that his constitutional right to property has been infringed, and would be entitled to some sort of relief from the court.
There is no obligation in our law whatsoever on a landlord to supply free services to a tenant or unlawful occupier and the only obligation that exists in our law for service delivery and the supply of free services lies squarely on the shoulders of the municipality concerned.
What does the above all mean?
There is also no Act such as the RHA providing that the termination without a court order amounts to spoliation. It is the view of the authors that there is also no application for the 'mandament van spolie' in situations such as these because the 'mandament' only kicks in when the supply to a property is unlawfully terminated - and if there was never an obligation to supply those services in the first place, the termination of those services by the landlord therefore cannot be unlawful.
This, however, is quite controversial, as to the knowledge of the author our courts have always (perhaps blindly) accepted that the termination of supply of services to a property without the occupier's consent, regardless of the status of that occupier (i.e. whether or not that occupier is or was ever in occupation of the property in terms of a lease) amounts to spoliation and is unlawful. It is my respectful submission that this needs to be re-examined in light of the context set out above.
In the second place, where there is a lease is place, even if the request to disconnect services of the landlord violates the constitutional rights of the tenants, this is a problem that must be dealt with by the tenants and the landlord by virtue of their contractual relationship to each other, and the municipality has no right to interfere with this relationship (and insist that the landlord continue to supply services even where a disconnection has been instructed) because it is not a party to the agreement that gives rise to constitutional or other rights at all.
It is submitted, however, that in cases where the landlord has lawfully instructed that disconnection take place, for the reasons set out herein, a municipality would be obliged to terminate the supply even if the occupiers make representations to it as to why the supply should not be terminated. This would be the case so long as the rights that the occupiers rely on in their representations are not more 'weighty' from a constitutional perspective than the rights of the owner that are infringed by the continued supply.
For example, if the occupiers explain that without electricity they will die because they are all on ventilators, their right to life will (potentially) be infringed if the supply is terminated - and this would arguably 'trump' the landlord's constitutional right to property - in a case like this the municipality would be justified in not disconnecting and referring the dispute to a court for determination.
However, if the occupiers indicate that they will simply be uncomfortable without electricity and water if the supply is terminated - and notwithstanding that it is terrible that any person should have to live without electricity or water supply - and remembering that access to water (but not the supply of water itself) is a constitutional right that (in many but not all cases will not be infringed because the municipality must continue to supply the free kl that it has committed to supply to each household or indigent households) - it is the author's view that the landlord's right to his property would trump the occupier's rights of access to water - precisely because the occupiers are illegally occupying the property and causing the landlord to suffer damage by not paying for their occupation or the costs of services associated therewith. This aspect is fraught with complexity and it remains to be seen how our courts will deal with it.
In this case a property owner requested that the supply of services to a property that was unlawfully occupied be disconnected in 2010. The owner has proof that the request was made to and received by officials of the municipality. However, despite the owner's best efforts over a period of four years the municipality failed or refused to disconnect the supply of services to the property.
The property owner thus launched a court application to compel the municipality to disconnect the supply of services to the property in relation to electricity, but to restrict the supply of water to the property to six kilolitres per household per month, which would allow the municipality to continue to fulfil its constitutional obligations in providing the occupiers with the six free kilolitres of water that the municipal bylaws provide for each month. Alternatively the owner sought an order that the municipal could chose to not disconnect the supply, but that the municipality was then liable for the continued cost of the supply.
The municipality concerned defended this application to the ends of the earth, adducing no less than twelve different defences as to why it should not be called upon by the court to disconnect the supply of services to the property. One of the defences, for example, was that the property owner had failed to follow proper procedures when requesting disconnection, inasmuch as it was alleged that the property owner did not complete and submit a specific form requesting disconnection. It turned out, however, that this form was not available at the time that the property owner had requested the disconnection, and thus this defence fell away, as did most of the other defences put forward by the municipality concerned.
The municipality's most interesting (and arguably strongest) legal defence was that the request to disconnect the services to the property constituted "eviction by the back door". The municipality argued that by compelling it to turn off the supply of electricity and water to the property, the property owner was doing nothing more than attempting to evict the occupiers without an order of court, which would amount to an illegal eviction in terms of PIE.
What is very interesting about the Zelpy case is that the property owner was actually supporting the right of certain of the occupiers to remain in occupation of the property, and had not taken any steps whatsoever to disturb the occupation of any of the occupiers. In fact, the property owner was assisting the occupiers in protecting themselves from a hijacker who was attempting to extort money from them and to evict them illegally from the building.
This happened in the situation where the property owner was not receiving rent at all from the occupiers, and was merely assisting them in recognition of their right to occupy the property by virtue of the Constitution and PIE. Therefore, in this particular instance the municipality's defence had to fail because it could clearly be shown that the property owner was, contrary to the municipality's allegation, not attempting to evict the occupiers from the property at all. It merely sought the disconnection of services in order to limit the amount of money charged to it each month by the municipality for the supply of services to the property in the situation where it had no legal or constitutional obligation to supply those services to the occupiers whatsoever.
A second very interesting aspect of this case is that the property owner contended that the municipality would be entitled to continue the supply to the property if it so wished, provided that it did so on its own dime, and did not hold the owner liable for the continued cost of the supply after the owner had requested the disconnection. This enabled the municipality to comply with whatever constitutional obligations it felt were owed to the unlawful occupiers of the property concerned without the property owner incurring any further harm as a result of the continued service supply.
The third critical aspect of this unique case is that, as mentioned above, PIE does not deal at all with the disconnection of services to a property, and thus the municipality's allegation that by requesting the disconnection of services the property owner was falling foul of PIE, could not be sustained.
The matter is currently pending before the South Gauteng High Court and it is hoped that it will be heard in the next few months. One of two rulings will come from the court: the first of which could be that a landlord is not entitled to apply for or have services supplied to an occupied residential property disconnected, regardless of whether the occupiers are occupying the property with the consent of the landlord or not.
The second ruling that might come from the court would be that a municipality is obliged to comply with a property owner's request to disconnect the supply of services to a residential property, potentially even regardless of the impact that the disconnection would have on the rights (statutory or constitutional or otherwise) of the tenant to receive service supply at the property from the landlord, this being a legal dispute that needs to be resolved between the property owner and tenant, and does not involve the municipality at all.
In a legal landscape where legislation makes it increasingly difficult for landlords to lawfully evict tenants, and in an economic environment where many people are finding it hard to make ends meet as a result of the rising oil prices (which leads to increased costs of service supply (such as electricity and water)) many landlords are finding that the continued cost of the supply of services to an unlawfully occupied (or even a lawfully occupied property) where the occupiers are not paying for those services is financially ruinous.
In the authors' view there is much merit to the argument that a property owner should be entitled to disconnect the supply to a property where it is unlawfully occupied and the occupiers never had a lease to begin with, without a court order, provided that the owner follows the prescribed and reasonable procedures to request disconnection. The municipality will be entitled to continue the supply on its own dime should it deem this necessary, but it municipality is not entitled to deny an owner a disconnection merely because the property is occupied.
