In a significant ruling, the Western Cape High Court has ordered the owners of a shopping centre to allow a gym to use its generator during load shedding.

The applicants – Bodies Under Construction CC, Specialised Weight Endurance and Aerobic Training CC and Fluidity Wellness CC – argued that the all-expenses-included lease they had signed with Permasolve Investments did not provide for additional payments for generator use.

Judge Derek Wille agreed, granting an order with costs supporting the tenant’s right to access the alternative energy supply.

Disconnecting the business pending an arbitration process had been unlawful, Wille noted, according to a Daily Maverick report.

Permasolve, whose directors include businessman and former trade unionist Johnny Copelyn and lawyer Raymond Berman, had installed a generator at the shopping centre which tenants used during load shedding.

The gym had used this alternative energy source for many years, noted Wille, ruling on the application for ‘spoliation’.

The gym sought urgent intervention from the court when Permasolve disconnected the business from the centre’s generators during power cuts, because it had not paid a ‘levy’.

Earlier, Wille had granted relief to the gym pending the outcome of private arbitration between the parties, issuing an interim order that the matter be categorised as urgent and that Permasolve reconnect the premises immediately.

He noted that ‘this alternative power supply is necessary so that the applicants can offer certain specialised fitness classes to their members. Load shedding is financially and reputationally disastrous for the applicants’ business’.

The relief was immediately appealed by Permasolve, reports the DM. 

‘I can only interpret this as an adverse reaction to the injunction I had issued the previous afternoon. Or it was an attempt by the respondent not to abide by the injunction’s terms,’ the judge said.

He pointed out that over the past 10 years the gym had never paid Permasolve any additional levy or further financial contribution for using the alternative power supply and the lease agreement had not provided for any additional payments.

‘The issue to be considered is "quasi-possession" for a spoliation claim. Our Constitution does not limit property to "corporeal" things. Our jurisprudence also has a history of protecting quasi-possession by way of spoliation,’ the judge said.

The disconnection had been ‘undoubtedly a substantial interference with the possession of the premises by the applicants’, he said.

Full Daily Maverick report

Judgment