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November 18, 2017

Can a municipality terminate electricity to premises without a court order?



As a rule, a landlord requires a court order before terminating the electricity supply to a property.

A municipality does not.

Landlord

It is a reality that when faced with a tenant who falls into arrears, some landlords consider taking the law into their own hands, for example by either locking the tenant out of the property or cutting off the electricity or water supply to the property. This can be an expensive course of action for the landlord.

The landlord has a duty to allow the tenant undisturbed use and enjoyment of the leased premises for the duration of the lease. Should the Landlord breach this duty, the tenant has the right to apply to Court, for a spoliation order. This means that the Court will order that occupation of the property be restored to the tenant and the Landlord will be liable for the tenant’s legal costs of the Spoliation Application, which can be quite substantial. The law also provides that where a tenant is unlawfully deprived of his use and enjoyment of the premises in this manner, he is not required to pay rental during the relevant period. See: https://goo.gl/19M7Gd

Homeowners Association

What if the rules allow a HOA to restrict rights to water and electricity?


The Court considered whether the restriction of his rights to water and electricity was lawful. One of the conditions of title agreed upon by the property owner, and registered against the title of the property, were that the owner would be bound by the statutes and rules of the respondent. Parties are free to contract as they please. The law permits perfect freedom of contract. Parties are left to make their own agreements, and whatever the agreements are, the law will enforce them provided they contain nothing illegal or immoral or against public policy. In this case, the applicant had the choice of not renting the property if he was of the view that the applicable rules were inconsistent with his rights. The respondent’s conduct was not unlawful as it acted within the rules and the agreement it entered into with the property owner. The conduct of the respondent did therefore not amount to spoliation.
Municipality

In a matter heard by the Constitutional court in 2013, in Rademan v Moqhaka Local Municipality, the court had to decide on this crisp issue: Ms Rademan did not pay her full municipal account (including rates and taxes), but only the electricity portion, because she felt that the municipality provided a poor service. Several other community members, adopted the same approach.

The municipality threatened to terminate her electricity, unless she paid. She refused to do so, and the municipality cut off her electricity.

The court had to decide if that was justified, even if her electricity bill was up to date, and it did, based on these facts:

·         Section 102 of the Municipal System Act 32 of 2000 provides that a municipality may consolidate accounts (rates, water, electricity, etc.).

·         Section 25(1) of the municipalities by-laws states that a Municipality may restrict or disconnect the supply of water and electricity or discontinue any other service to any premises whenever a user of any service, fails to make payment on the due date or fails to make acceptable arrangements for the repayment of any amount for services, rates or taxes.

As Ms Rademan failed to pay the consolidated account – even though her electricity was paid for - she contravened the municipality’s conditions of payment, and the municipality was entitled to cut her electricity.


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