According to the recent judgement handed down by the Johannesburg High Court, the answer is no.
In short, a contract of lease is an undertaking by the lessor to give to the lessee undisturbed temporary use and enjoyment of the property, in exchange for rental payments.
Should a tenant not pay rent, the landlord has certain remedies at his disposal. However, these remedies must be exercised in accordance with the law and disconnecting the water and/ or electricity supply is not one of them, as this would be considered as taking the law into their (the landlord’s) own hands.
A tenant may approach the court for a restoration order in terms of the mandament van spolie should a landlord disconnect the water and/ or electricity supply.
The High Court stated that a mandament van spolie or a spoliation order is available where “a person has been deprived of his possession of movable or immovable property or his or her quasi–possession of an incorporeal. A fundamental principle in issue here is that nobody may take the law into their own hands. In order to preserve order and peace in society the court will summarily grant an order for restoration of the status quo where such deprivation has occurred, and it will do so without going into the merits of the dispute.”
The court further stated that the supply of electricity and water is not merely contractual, but an incident of the possession of the property.
Accordingly, even if a tenant fails to vacate the property on an agreed date, the lessor may not cut off the electricity supply as electricity is an incident of occupation and cutting off same will amount to an interference with the lessee’s occupation which means that the lessor performs an act of spoliation.
Therefore, irrespective of whether the tenant is occupying the property unlawfully, a landlord may not disconnect water and electricity without the intervention of a court.