On 14 April 2015, the Western Cape Division of the High Court handed down judgment in a matter, which caused a great stir in the property industry. In this matter the court granted an order authorising the property owner to terminate the electricity supply to the premises, occupied by the respondent. It is of utmost importance to emphasise that this judgment does not provide a property owner with the right to disconnect utility supplies to a property due to non-payment of utilities or any other charges, without a court order. The position regarding spoliation was not changed by this judgment, in contrary Judge Schippers specifically mentioned that it was necessary for the applicant to bring the application by stating: “The applicant however cannot take the law into its own hands by simply cutting off the respondent’s power supply, hence this application.”
The applicant in this matter is Anva Properties CC, the owner of the property situated at 34-36 Riebeeck Street, Cape Town. The respondent, End Street Entertainment Enterprises CC is an occupant in this building owned by the applicant. The respondent was deregistered in 2008, whereas the lease agreement was only concluded in 2012. This fact was raised as a defence by the respondent to dispute the validity of the lease agreement. A further defence was raised by the respondent stating the the applicant does not have the right to collect debt from the respondent, since all the rights of the applicant was ceded to Nedbank Limited. The Court however decided not to delve into these defences during the argument at hand, being the application to obtain a court order to allow the applicant to disconnect the electricity supply to the respondent. The reason for this is that the defences raised by the respondent only relates to the applicant’s right to claim debts from the respondent, debt collection was not the case before Court. The building in question is occupied by multiple tenants. The respondent has not paid its electricity bill since September 2014, at the time of handing down the judgment the arrears was in the excess of R 300 000.00. The applicant was in a position where it effectively subsidised the business of the respondent, during the period of non-payment, but could do this no longer. If the applicant merely seized payment of the electricity account to the City of Cape Town, the electricity supply to the entire building would be disconnected, leaving other tenants without electricity. The applicant clearly had no choice but to bring this application to obtain an order to be placed in a position to mitigate its damages.
A party suffering damages is always required to mitigate its damages, however it should always be kept in mind that no person is allowed to take the law into her own hands. This judgment does give owners a basis to bring an application to request an order to disconnect the utility supply to their property, if the occupant fails to pay the utility charges. However, such an application would be similar to an eviction application, in the sense that only a court can grant an order such as this. The reason being this this remedy, is a remedy provided for in law, to place the owner in a position to enforce the rights he has to his property. Since a similar process to an eviction application would be followed in a matter like this, the costs and time frame would be similar. This judgment should not be seen as a replacement of, or an alternative to an eviction application. In certain circumstances, it could be a powerful tool in the hands of the owner to combine these applications.