Can I Cut Off the Supply of Municipal Services to a Non-Paying Tenant?

“If the tenant is not paying the rent, why should I subsidise their electricity?” “Maybe they will move out more quickly if I cut off their water?” These are just a few of the thoughts that will cross a landlord's mind when faced with a tenant in arrears for rent and/or municipal services.

Landlords, desperate to find a quick fix, often consider more “creative” solutions such as cutting off the supply of electricity or water to induce the tenant to pay up or vacate. This practice is commonplace, but is it actually permissible and legal?

The short answer is “no” where the property is let as a house or dwelling, but “perhaps” for defaulting tenants who occupy premises as a commercial space.

Everyone has the right to basic essential services in South Africa. The Constitution guarantees the right to access water, and the Municipal Services Act requires the provision of basic sanitation services to all. The courts have, in recent years, interpreted this right to include access to electricity.

In Joseph v City of Johannesburg the court held that “the provision of basic municipal services is a cardinal function, if not the most important function, of every municipal government,” because electricity has become “virtually indispensable, particularly in urban society.”

Municipalities are mandated to supply basic essential services, and as a general rule a landlord is responsible for payment to the local authority for the provision of those services to premises registered in its name — regardless of whether the tenant has breached the lease.

Any act that forces a tenant to leave by diminishing their quality of life or obstructing their access to essential services is treated as an attempted “passive” or “constructive” eviction, which is unlawful. It is settled law that no landlord can evict a tenant — residential or commercial — without a court order.

If a tenant breaches a material term such as payment of municipal services, the landlord may cancel the lease. If the tenant then refuses to vacate, the landlord has recourse to the courts for an eviction order and a claim for arrears — but not to summary disconnection.

A business does not have the right of access to essential municipal services in the same way a household does. In Anva Properties CC v End Street Entertainment Enterprises a commercial tenant operating a nightclub was over R300,000 in arrears for electricity. The Western Cape High Court held it was unfair to require the landlord to keep subsidising the business and allowed the supply to be suspended — but only by operation of a court order, and with safeguards so other tenants in the building were not affected.

1. Install pre-paid electricity meters. Disputes about charges fall away and the tenant is motivated to pay. The landlord also exits the “middleman” role.

2. Consider a pre-paid water meter or water management device — useful in drought-prone provinces and similarly removes administrative burden.

3. Allow the tenant to open a municipal account in their own name, removing the landlord from the equation.

4. If the tenant defaults, instruct attorneys promptly to cancel the lease and pursue a lawful eviction under the PIE Act.