Load-shedding continues to plague us and our businesses, and when tenants are connected during power cuts to their landlord’s alternative power source – such as a generator – it is essential for both parties to understand their respective rights.
Lights out for a shopping mall gym
An upmarket gym had relied for years on its shopping mall landlord’s generator to get through load-shedding, without having to pay extra for it.
'Out of the blue' the landlord demanded a monthly 'diesel recovery levy' and a dispute arose over whether it was entitled to do so or whether the cost was already covered by an existing 'all-inclusive monthly fee for all expenses related to the lease of the premises'.
The parties agreed to refer that dispute to arbitration but then the landlord decided to flex its muscles by cutting off the gym’s connection to the generator.
The gym obtained an urgent reconnection order from the High Court. Although that is only a temporary solution for the tenant (it must still win the arbitration or pay the extra levy), the Court’s decision is a significant one in that it has confirmed the principle that access to an alternative source of power does fall under the protection of the 'spoliation' principle.
'Spoliation'- no one can take the law into their own hands
No one can go the self-help route and take the law into their own hands by removing property from someone else without a court order. Anyone deprived of possession like that can urgently obtain a 'spoliation' order forcing an immediate return to it of the property.
At this stage, the court won’t be interested in who has the legal right to the property – all it will look at is whether:
The possessor was in 'peaceful and undisturbed possession', and
It was unlawfully deprived of that possession.
That’s straightforward with possession of a 'corporeal' thing like a car or a house or a parrot. But when it comes to an 'incorporeal' thing, like access to an alternative energy source, things become more complicated. Now you must prove that you had 'quasi-possession' of the power supply.
As complicated as that may sound, what’s important on a practical level for both landlords and tenants is that this judgment has confirmed in principle that access to an alternative power supply such as a generator falls under the law’s protection as much as possession of a corporeal thing.
The bottom line
Whether or not a tenant has an enforceable right to its landlord’s alternative power supply – and if so whether it must pay extra for it - will depend on the wording of the lease.
But the landlord cannot just cut off an existing power supply without following legal process.