It is not an uncommon occurrence for landlords to find themselves in the position where its tenants do not pay utility bills. This can be detrimental to landlords which must still pay the costs of its tenants’ usage of these utilities to municipalities. In this regard, landlords often contemplate succumbing to the temptation of taking it upon themselves to disconnect the supply of these utilities to non-paying tenants.

These actions by a landlord are however unlawful, as the landlord may not simply take the law into its own hands. Consequently, such conduct is often met with tenants launching spoliation applications to restore the terminated supply of utilities.

Spoliation is the unlawful or wrongful deprivation of possession. It may be committed with respect to the deprivation of quasi-possession of rights, such as the right to the supply of water and electricity, an example of this being the case of Du Randt en ‘n Ander v Du Randt, where the court held that the unauthorised disconnection of a telephone service amounted to spoliation. The remedy in a case of spoliation is the mandement van spolie, which is aimed at restoring possession at once to the possessor, and therefore prevents landlords from resorting to self-help, and rather ensures that they take recourse to a court of law.

In April 2015, a Cape Town High Court judgement was delivered in the case of ANVA Properties CC v End Street Entertainment Enterprises CC, where a landlord, faced with a non-paying tenant running up electricity charges, commendably approached the court for relief, rather than taking the law into its own hands. The outcome of the case, as described below, will give encouragement to landlords prejudiced by tenants who fail to pay utility costs.

The facts of the case were as follows. The applicant (landlord) sought an order authorising it to terminate the electricity supply to a tenant, being a nightclub operated by the respondent whom had been leasing a premises within a building owned by the applicant. The applicant paid electricity costs to the City of Cape Town and recovered its costs from its tenants. The respondent however had failed to pay its electricity bill since September 2014 and was in arrears in excess of R300 000.

After holding that there was never a valid lease agreement between the parties due to the deregistration of the respondent prior to the conclusion of the lease, the main question to be determined by the court was whether the applicant in its founding affidavit had made out a case for the relief sought.

In the affidavit the applicant explained how it was required to pay the City of Cape Town for all services rendered, including electricity, in respect of its building in its entirety and if it failed to do so, the City of Cape Town would disconnect the power to the whole building. This would affect every tenant. The tenants, including the respondent, were required to pay their proportional costs of the electricity costs to the applicant. Regardless of whether one tenant did not pay its proportional costs, the applicant was obliged to pay the full amount owed to the City of Cape Town. Because the respondent had failed to pay its electricity costs notwithstanding the applicant’s fulfilment of its obligations toward the City of Cape Town, the court held that the applicant was “effectively subsidising the respondent’s business”, and it could not be allowed to continue.

The court went on to emphasize that the applicant cannot take the law into its own hands by simply disconnecting the respondent’s power, which is why the application was necessary. In terms of the court order the applicant was ultimately authorised to terminate the supply of the electricity to the premises of the respondent. To this end the respondent was ordered to grant an electrician appointed by the applicant access to the premises to disconnect the electricity supply, and it was further ordered that the respondent was prohibited from tampering with any seal installed by the electrician in order to reconnect the electricity supply to the premises.

In conclusion, while landlords in positions similar to the applicant in this case may not disregard the judicial process and simply take the law into its own hands, they may be encouraged in the sense that the courts will favour protecting prejudiced landlords from having to stand by idly and effectively subsidise non-paying tenants’ utility costs. It must be borne in mind however that the circumstances of this case were unique in the sense that the applicant had no contractual grounds for relief as there was no valid lease between the parties, owing to the fact that the respondent was a non-existing entity. The court in this regard may have shown a degree of sympathy to the applicant, which may not always be forthcoming in future cases with differing facts.