How far-reaching are the body corporate’s powers?
We’ve written before about tenants’ rights and disconnection of utilities. Cutting off essential services like water, electricity or gas as a means of evicting a tenant is strictly prohibited without following the proper legal channels. But what happens if someone owns a unit in a sectional title complex? What powers does the body corporate have if an owner fails to pay levies and charges? Such a case came before the Johannesburg High Court recently and it raised critical constitutional questions about the rights of property owners, access to municipal services, and the authority of a body corporate to disconnect utilities for non-payment of levies and utility charges.
The court’s decision appears to be a straightforward enforcement of contractual obligations within a private scheme, but in fact it has far-reaching implications for South Africa's constitutional protections. We examine why the court's decision may run counter to the provisions entrenched in the Constitution.
Case overview
The body corporate of a sectional title scheme sought a court order for approximately R107,000 in unpaid levies and electricity charges owed by a unit owner. The body corporate, which had been paying the electricity charges on behalf of the owners, sought permission from the court to disconnect the electricity supply to the unit in the event of continued non-payment.
The owner conceded they owed the money but argued that the body corporate had no right to disconnect the electricity without prior agreement. They further contended that disconnection would violate their constitutional right to avoid arbitrary deprivation of property under section 25(1) of the Constitution and their “public law right to receive electricity from the municipality”.
The body corporate argued that disconnection was justified by a tacit agreement between the parties, binding all owners to the rules of the scheme, including the obligation to reimburse the body corporate for the electricity charges it paid on their behalf.
The court's decision
The court ruled in favour of the body corporate, agreeing that a tacit agreement existed between the owner and the body corporate, which obliged them to reimburse the body corporate for electricity charges. As an owner in the sectional title scheme, they were deemed to have accepted the scheme’s rules and resolutions passed by the trustees, including those regarding payment for utilities.
The court held that the body corporate could disconnect the electricity supply in the event of continued non-payment. The disconnection was viewed as a necessary step to mitigate the body corporate's financial losses, ensuring non-paying owners could not enjoy the benefits of electricity while other owners bore the financial burden.
Although the court acknowledged that disconnection of electricity could have constitutional implications, it ruled the action was not an arbitrary deprivation of property. Instead, the court framed the disconnection as a consequence of a contractual relationship between the body corporate and the owners.
The constitutional dilemma – basic rights
At the heart of this dilemma is the tension between the contractual obligations of property owners in a sectional title scheme and the constitutional imperative to provide access to essential services such as electricity.
Before the Constitution was enacted, access to electricity was viewed as a common law right related to servitudes, personal and contractual rights, suggesting there was an understanding of the right to electricity even before the current constitutional framework.
Under the Constitution, access to electricity is not explicitly listed as a right. However, it is treated as integral to the Bill of Rights, particularly the rights to human dignity and access to adequate housing, water and health care. The right to electricity is considered a supplementary or enabling right because it is necessary for the enjoyment of other fundamental rights.
The challenge in this case is whether a body corporate or landlord, by cutting off electricity or disrupting access to essential services as a measure to enforce unpaid levies, violates the constitutional right to access to electricity. The right to dignity as enshrined in Section 10 of the Constitution suggests that deprivation of electricity in this context could constitute an unjustifiable limitation of a person's ability to enjoy other socioeconomic rights, even if the non-payment of levies resulted from financial disputes.
Private property and human dignity
A conflict arises between the private rights of a body corporate to enforce payment for services rendered and the public interest in ensuring access to essential services. While property rights are constitutionally protected under Section 25, they cannot override the right to dignity and access to basic services, particularly when access is critical to the exercise of other rights like housing and health care.
In this case, the body corporate's right to disconnect the electricity may be justified in a contractual sense. However, this contractual remedy could be seen as disproportionate if it leads to a disruption of essential services that compromises the human dignity of affected individuals, especially in situations where access to electricity is fundamental to daily living.
Limitation of constitutional provisions
Section 36 of the Constitution states: "The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors."
If a law limits a constitutional right, this limitation must be reasonable and justifiable. Rights should only be limited when absolutely necessary and limitations must be proportional to the aim of the limitation. In determining whether the limitation is reasonable and justifiable, courts assess a variety of factors, including:
The nature of the right: how fundamental is it to human dignity, freedom, or equality?
The purpose of the limitation: what does the law aims to achieve by limiting the right?
The extent of the limitation: how much is the right restricted?
The relationship between the limitation and its purpose: is the limitation proportionate to the aim of the law? Would a less restrictive means achieve the same goal?
Whether there are less restrictive means available: could the law achieve its purpose in a less restrictive way, without limiting rights?
The importance of the purpose: how pressing is the purpose in the broader context of society's needs, values and goals?
Electricity access is seen as essential to the exercise of other rights. Therefore, has the court properly assessed all factors and whether alternative remedies (such as civil action for debt recovery) could have been considered?
Judicial treatment
The case illustrates the growing recognition of the interrelatedness of the right to electricity and the right to dignity and the broader socioeconomic rights guaranteed by the Constitution. As courts have increasingly acknowledged, load shedding and interruption of electricity supply can amount to violation of rights, particularly when individuals are deprived of basic necessities such as lighting, cooking facilities and the ability to work or study.
A dangerous precedent?
The court’s ruling could set a dangerous precedent for the future of sectional title schemes and their relationship with utility providers. However, body corporates are not allowed to disconnect electricity solely on internal resolutions and private agreements with owners. There must be a court order.
This case also demonstrates the potential for abuse, especially in schemes where some owners are financially vulnerable or where the body corporate has not provided adequate transparency regarding the charges being passed on to owners. It also opens the door for further tension between private agreements and public law rights, particularly the protection of access to essential services for vulnerable people.
If you own title in a sectional title scheme, it is important to fully grasp the scope of the body corporate's powers and obligations.
Ultimately, while the decision may have resolved a practical dispute within a particular sectional title scheme, it emphasises the need for a more balanced approach that safeguards both private property rights and the constitutional rights of individuals, especially when it comes to basic services.
For further information
Eviction lawyers SD Law can answer your questions about sectional title law and rights. Contact one of our specialist property attorneys on 086 099 5146 or simon@sdlaw.co.za. Simon Dippenaar & Associates, Inc. is a law firm in Cape Town, Johannesburg and Durban working hard to help property owners, landlords and tenants alike with rental housing and property ownership issues.