Can the Trustees Disconnect My Electricity?

Carryn Durham, who manages the Paddocks Consulting Team, is a featured property-law expert on Property24. She recently answered a reader question about whether the trustees of a body corporate are entitled to disconnect electricity due to arrear levies. Read the interesting question and answer below:

The question:

A Property24 reader says her electricity has been cut due to short payment of levies. Is this legal?

“I am in a situation where the secretary of the trustees decided to cut my electricity supply due to short payment of the levies. I have my own account with the municipality and we don’t share the bill with the body corporate. And without even following the legal process, my electricity was turned off.

Please advise what steps I should take.”

The answer:

The trustees cannot disconnect electricity supplies without either a statutory right to do so or an order of court authorising the disconnection. It is illegal to “take the law into your own hands” in an attempt to force owners to pay outstanding levies.

There is South African legislation that makes shutting off services an offence. In terms of the Rental Housing Act 50 of 1999 section 16(hA) (which deals with matters arising between landlord and tenant):

“Any person who unlawfully locks out a tenant or shuts off the utilities to the rental housing property will be guilty of an offence and liable on conviction to a fine or imprisonment not exceeding two years or to both such fine and such imprisonment.”

Previously the Electricity Act 41 of 1987 section 27(3) made it an offence (liable for a fine and/or imprisonment) for any person without legal right to cut off or damage or interfere with any apparatus for generating, transmitting, or supplying electricity. This Act was repealed and replaced by the Electricity Regulation Act 4 of 2006. Section 22 deals with the powers and duties of a licensee and states that only the holder of a license, granted by the Regulator, may disconnect an electricity supply subject to the conditions set out in section 22(5). Only a “licensee” may disconnect someone’s electricity for non-payment (in terms of section 15(1)(n) and section 22(5) of the Act).

Therefore, bulk suppliers of the electricity such as Eskom or a subsidiary supplier such as a local authority or City Power can disconnect the supply of electricity in response to non-payment of the account and after due notice has been given. This has been held to be a legitimate act. However, a body corporate is not a “licensee,” but a “distributor” in terms of the Electricity Regulation Act, and is not entitled to cut off the supply of any service to a section when one of its members is in arrears with their levies. This is an act of “spoliation” ie. taking the law into one’s own hands.

The illegal disconnection of electricity to a unit by a body corporate was dealt with by the High Court in the case of Queensgate Body Corporate v Claesen (A3076_98) [1998] ZAGPHC 1 (26 November 1998). The court confirmed the scope of spoliation as was summarised in Nino Bonino v De Lange 1906 TS 120 at 122 where Innes, CJ said:

“It is a fundamental principle that no man is allowed to take the law into his own hands. No one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property whether movable or immovable. If he does so the court will summarily restore the status quo ante and will do that as a preliminary to any enquiry or investigation into the merits of the dispute. It is not necessary to refer to any authority upon a principle so clear.”

In this case the body corporate’s counsel argued that the act was taken in accordance with the scheme’s rules, duly made under the Sectional Titles Act. This argument was held to be without merit. The court said:

“The clause giving the appellant the right to cut off electricity of any unit owner who is in arrears with his or her levies is clearly contrary to the common law. It constitutes nothing but a power to interfere with such person’s right to use the existing electricity supply. The instant case is an a fortiori example of spoliation.  … no court would have had the power to deprive any holder of his or her electricity supply in the circumstances the appellant has done. It is a clear act of spoliation and there was no consent valid in law to such an act.”

The Sectional Titles Act 95 of 1986 provides in sections 37(2) and 37(2A) a specific remedy for the non-payment of levies. The body corporate can recover the levies from the owner in the magistrates or the High Court.

Unfortunately bodies corporate persist in disconnecting (and charging re-connection fees) to owners who are in arrears with their levies because it is seen as an effective remedy. Often the owner is not in a financial position to go to court to resist the spoliation and to obtain an order to have the electricity supply immediately restored. This leaves the owner with little choice but to pay so that their electricity is reconnected.

Hopefully once the Community Schemes Ombud Service Act 9 of 2011 is in operation it will address this issue by giving owners who cannot afford lawyers and expensive court fees the ability to resist spoliation.

Has the electricity been disconnected due to arrear levies in your scheme or any of the schemes you manage? Share with us by commenting below.

Image source: nepalenergyforum.com