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Wednesday Nov 21, 2012

Landlords may not take the law into their own hands

When a tenant does not pay the rent, some landlords resort to unlawfully disconnecting the water and electricity supply to the tenant.

What if the contract states that failure to make payment gives the landlord the right to shut off the water and electricity? Would the landlord's action be justified? Would a consumer then have recourse to a legal remedy, such as an urgent interdict (spoliation), to have the services restored?

A closer look reveals that it is the by-laws that allow for the disconnection of basic services in the event of non-payment.

The Strand Magistrate's Court granted a spoliation order to property owner Marcel Mouzakis Strümpher compelling the City of Cape Town to reconnect the water supply to his Strand property.

The water supply was disconnected on August 17, 2007, when Strümpher failed to pay accumulated arrears of R182 000. An urgent court application was successful and the City of Cape Town's action was declared unlawful. It was ordered to reconnect the water immediately.

Strümpher had earlier complained to the city that the meter recorded water consumption even when no water was used.

The city investigated and found the meter to be faulty. It replaced the meter and the mains connection. Soon after, Strümpher was asked to replace several pipes that caused leakage. The water usage recorded subsequently dropped, but the municipality threatened to disconnect the supply if the arrears were not settled within two days.

Strümpher's attorney questioned the account amount, and declared a dispute, as provided for in the municipality's Credit Control and Debt Collection Policy. But the city ignored the letter and later in 2007 disconnected the water supply.

When the magistrate granted the spoliation order, the city appealed to the full Bench of the Western Cape High Court. Judge Siraj Desai and Acting Judge AJ Gassner.

The high court confirmed the magistrate's order, but granted the city leave to appeal to the Supreme Court of Appeal.

On appeal (City of Cape Town v Strümpher (104/2011) (2012) ZASCA 54 (March 30, 2012), the city contested Strümpher's argument that he was entitled to a spoliation order as the disconnection of the water supply violated his statutory water rights. A disconnection could only follow a court decision in the city's favour that the arrears were due.

On March 30, the Supreme Court of Appeal handed down its judgment rejecting the city's appeal, confirming the magistrate's court order and upholding the high court's judgment.

The city argued that there was a contractual relationship with the owner in terms of the its water by-law, and the credit control and debt collection by-law.

Also, the monthly billing statement reminded the owner/consumer that the payment for service due to the city could not be withheld, even in the instance of a dispute.

According to the Supreme Court of Appeal, the city's contention that it had the right to limit or shut off water supply in terms of the Water Services Act and other by-law for nonpayment was not lawful.

The city is required to follow specific procedures, including a dispute resolution, to ensure that the outcome is fair and equitable.

The city failed to follow its own procedures and took the law into its own hands by shutting off the water supply.

In a unanimous judgment, the appeal was dismissed with costs. The judge said there was no justification for the city to cut off the water supply to the property.

As for the granting of the spoliation order, the judge said that it was an appropriate remedy.

"A spoliation order is available where a person has been deprived of his or her possession of movable or immovable property, or his or her quasi-possession of an incorporeal," the judge said.

"A fundamental principle at issue here is that nobody may take the law into their own hands. In order to preserve order and peace in society, the court will summarily grant an order for restoration of the status quo where such deprivation has occurred, and it will do so without going into the merits of the dispute.

"The evidence... shows that the respondent [had] for the past 37 years received an uninterrupted supply of water from the city at the time when that service was summarily terminated.

"I have already alluded to the fact that the respondent's rights to water were not merely personal rights flowing from a contract, but public law rights to receive water, which exist independently of any contractual relationship the respondent had with the city.

"The respondent's use of the water was an incident of possession of the property. Clearly interference by the city with the respondent's access to the water supply was akin to deprivation of possession of property."

Dr Sayed Iqbal Mohamed
Chairman, Organisation of Civic Rights
Tenant Matters
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