The short answer
A landlord cannot cut off a tenant's electricity even if he is in arrears with rent. You need to apply for an eviction order from the court.
The whole question
I have been letting an outbuilding in my yard as a spaza shop. The tenant's lease expired on 1 April and, although I have served him a written notice to settle his outstanding payments and vacate the premises, he refuses to do so.
I have to pay the council a business levy for electricity and the tenant's usage - amounting to about R2,600 per month. I am a pensioner and cannot afford this, so I feel I have no alternative but to shut down his electricity. Can I do that?
The long answer
A landlord may not cut off a tenant’s electricity even if he is in arrears with the rent. This would be considered an illegal eviction, and so the tenant would be able to get the electricity restored until he was legally evicted by a sheriff of the court after you had obtained a court order for his eviction. In terms of the Constitution, no one may be evicted without a court order. This is under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No. 19 of 1998, known as the PIE Act.
To get such a court order, you would need to get a date for a court hearing and you would need to give this date in writing to the tenant, who is entitled to appear in court on that day and give his side of the story. The court would have to be satisfied that the eviction was fair and reasonable before granting an order.
The Western Cape government on their website has this to say about a lease that expired during the state of disaster, which was lifted on 4 April 2022:
“The lease agreement will continue on a month-to-month basis until the lockdown has been ended. The tenant will be liable for payment of all rental and utilities during this period.
Check your previous lease for a renewal clause that outlines how much notice you must give in such a situation.
If there is no such clause, then the two of you have, through your actions, effectively renewed the previous lease, on the same terms and conditions, and for the full period stated in the original agreement. This means that you will have to invoke the cancellation clause of the original lease, if there is one, in order to get out of the agreement.
Without a cancellation clause, the best way to get out of the contract would have been to give your tenant one month's notice, in writing, before the lease expired. (So if you were nearing the end of a 12-month lease, you should have let your tenant know, in writing, at the end of the eleventh month.)”
The lease may specify what a breach of contract would be (e.g., failure to pay the rent) and what the consequence of such a breach would be (e.g., cancellation of the lease agreement).
But in any case, if he refused to vacate the premises, you would need an eviction order from the court. As the state of disaster was lifted on 4 April, there is no longer a moratorium on evictions, but you still need a court order.
You could also approach the Rental Housing Tribunal (RHT) for assistance in this matter. These are independent provincial bodies set up to resolve disputes between landlords and tenants, whose rulings have the same power as a magistrate’s court.
The Rental Housing Act 50 of 1999 says that a landlord may “recover unpaid rental or any other amount that is due and payable after obtaining a ruling by the Tribunal or an order of a court of law: terminate the lease in respect of rental housing property on grounds that do not constitute an unfair practice and are specified in the lease.”
These are their contact details in the Western Cape:
For all general enquiries
For dispute-related enquiries
But a Tribunal cannot eject the tenant – only the sheriff of the court has that power, in terms of an eviction order.
You could also ask Legal Aid for assistance if you qualify for legal assistance in terms of their means test.
These are their contact details:
Legal Aid Advice Line (Toll-free): 0800 110 110
Please-Call-Me number: 079 835 7179
Tel: 0800 110 110 (Mon to Fri 8am – 4pm)
079 835 7179 (Please Call Me)
Wishing you the best,
Answered on Sept. 5, 2023, 1:22 p.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.