Landlord ordered to restore defaulting tenants’ water and power

The Johannesburg high court has ruled that a landlord cannot cut off the electricity and water supply without first getting a court order even if rent has not been paid.

Residents of a Johannesburg apartment building discovered in 2021 that their water and electricity had been cut off. But, after taking their landlord to court, they managed to have these restored, because the landlord “had taken the law into their own hands”.

However, the Johannesburg high court on Tuesday ruled that this did not prevent the landlord from instituting eviction proceedings.

The residents said in court papers that in 2021 they were served with notices from SK Enterprise, the firm managing the building as a landlord, to vacate the property due to not paying rent. The residents’ water and power were subsequently cut off. Collectively, the residents’ lawyer wrote to the property’s caretaker advising him to stop evictions and disconnecting their power and water.

SK Enterprise did not adhere to this request, resulting in the residents going to court.

In court, the residents argued that the lease agreements were negotiated “illegally”, because SK Enterprise was not the property owner.

SK Enterprise said all formalities were complied with, even though there was no agreement in writing, which is not a legal requirement. It demonstrated documents that showed it had acted lawfully on behalf of the building owner — one Jean Baptiste Mutangana, who was a member of SK Enterprise.

No basis

Acting judge M Olivier from the Johannesburg high court on Tuesday agreed with SK Enterprise on this point, saying it “was properly mandated to conclude lease agreements on behalf of the owner, and to collect rentals.”

The residents also wanted the company to disclose all its accounts and statements held with any bank in SA. However, Olivier said the residents had “not provided any basis” for this.

The residents said SK Enterprise collected rates and taxes owed to the Johannesburg municipality, but failed to pay it over. But, said Olivier, the residents provided “no legal or factual basis for their entitlement to this relief”. SK Enterprise provided proof of payment to the municipality, showing payments were up to date, said Olivier.

Olivier also slammed the residents for a “poorly worded and ambiguous” request in their papers about rent and rental agreements. The court struggled to make sense of what the residents wanted.

The residents asked that they be given an interdict to prevent eviction. However, SK Enterprise said this was a premature request as no eviction proceedings had begun. Due to the nonpayment of rent, it was lawfully allowed to begin such proceedings, it said. Oliver agreed with SK Enterprise.

The residents asked that their water and electricity be restored. SK Enterprise did not deny turning these off, but said it was mitigating further loss since the residents’ rent included payment for water and electricity. By the residents continuing to draw water and power without paying SK Enterprise, the company itself would have to pay to the benefit of defaulting residents.

Spoliation request

But Olivier slammed the landlord company. Even when faced with tenants who won’t pay rent, “landlords are not entitled to take the law into their own hands”.

Olivier noted the residents had, in fact, made out a “spoliation” request, the aim of which is to ensure that someone who has been in possession of an item for some time — even illegally — cannot be deprived of it without the claimant having for example a court order to take it back. Spoliation prevents people from taking the law into their own hands, even if ultimately they are correct.

To Olivier “disconnection ... amounts to a deprivation” in this case, which cannot be done without a court order.

“They have no access to sufficient water and no electricity,” Olivier said, “which no doubt [affects] their human dignity and use of the property. Irrespective of the lawfulness or otherwise of the occupation, a landlord may not disconnect water and electricity without the intervention of a court.”

He noted that SK Enterprise and its workers had “taken the law into their own hands”. Olivier therefore ruled that the landlord must “restore access to water and electricity” to each of the residents “with immediate effect”.

Because of the residents’ partial success, SK Enterprise was ordered to pay costs.

moosat@businesslive.co.za