A landlord who considers his tenant an unlawful occupier because the tenant failed to vacate the property after a valid cancellation of the lease cannot disconnect municipal services to the property.
Even if the landlord were to instruct the municipality to carry out the disconnection while the tenant is still in occupation, the suspension or disconnection of the services would be unlawful. The tenant will succeed in a legal challenge through the courts, as in the case of Painter v Strauss 1951 (3) 307 (O).
There is always the possibility that what appears to be a valid termination of the lease may not be binding or legal. In terms of our law, a notice terminating a lease or a notice for a rental increase must be unambiguous.
Parties must be clear about what is required; the landlord wants the tenant to move out of the property or the increased rental paid by a certain date.
The tenant may not be able to dispute what is required or, at least, may not have legal grounds to challenge such a notice, depending on the lease agreement and circumstances.
A tenant given two separate notices, one for a rent increase and another to vacate a month after the increase comes into effect, is likely to be confused but is certain to succeed if she decides to challenge her landlord.
It does not make sense to pay an increase and then a month later be expected to move out of the property if the tenant is not in breach.
The situation is complicated if the notice of termination also carries with it a threat that services would be disconnected should the tenant refuse to move out at a certain date.
If the notice is a proper one, in that it has complied with the legal requirements, the law must be followed should the tenant fail to move out. The court will decide if the landlord had the right to cancel the lease.
Any unlawful action will have serious consequences if the tenant exercises her right to challenge it.
There are many examples where the landlords’ unlawful actions affected them, financially and legally. For instance, the cases of Painter v Strauss 1951 (3) 307 (O); Naidoo v Moodley 1982 (4) SA 82 (T); and Froman v Herbmore Timber & Hardware (Pty) Ltd, 1984 (3) SA 609 (W).
An attorney, as an officer of the court, cannot advise his or her client to break the law. In issuing a notice of cancellation of the lease, an attorney cannot state that his or her client will disconnect the services or lock out the tenant.
It would appear that the attorney is a party to the intended unlawful action, and in the event such an action is carried out, then the attorney, if found guilty, may be suspended or prevented from practising.
The following is an example of an attorney becoming legally liable, or at the very least, a party to an intended unlawful action.
The notice to vacate in this instance must be a calendar month’s notice since there was no breach and the tenancy was a periodic monthly lease.
July 20, 2018
We act for your landlord under whose instructions we record the following:
1. Your lease is cancelled and you are required to move out by August 20, 2015.
2. Our client instructs us that on August 21 she will disconnect electricity and water supply to the premises.
3. Please leave the keys at our offices.
A response is necessary to inform the attorney that any unlawful action will be challenged:
July 22, 2018
I refer to your notice of rent increase and notice to vacate, dated May 31, 2015 and July 21, respectively. I wish to record the following:
1. The notice to vacate is not valid.
2. Disconnecting electricity and water supply would be unlawful.
3. Should there be any disconnection, either through instruction to the municipality or any other manner, I will be forced to bring a spoliation application and hold your client and yourselves responsible.
4. The court’s attention will be drawn to the fact that you and your client were notified that the intention to disconnect as per your letter dated July 20 would be unlawful.
5. Your client will also be held liable for all legal costs and the court will be asked to make a punitive cost order against your client and yourselves and to grant any other appropriate relief for the disconnection.
All my rights are expressly reserved.
Parties are advised to seek legal help and not to take the law into their own hands. Two wrong actions do not render a just solution.
Legal advice, however, should not compromise the law for the sake of convenience or urgency. Legal practitioners who abide by the law must advise their clients that breaking the law has serious consequences.
There should be no confusion or space for interpretation to allow for unlawful action or that such actions were approved by their legal representatives who are officers of the court.
US federal judge Isaac Melson Meekins in 1926 reminded “lawyers” of their profession: “The individual member of the profession who never realises, or who forgets, that he is an officer of the court, has missed the mark of his high calling and should seek other lines of endeavour in justice to the profession which has played a part in the development and maintenance of civilisation unequalled in the affairs of men.”
Lawyers are the guardians of our law and must protect it. Their advice to their clients must never compromise the integrity of their profession nor the clients’ rights. There are many legal firms in South Africa that remind landlords not to take the law into their own hands.
Dr Sayed Iqbal Mohamed
Chairperson of the Organisation of Civic Rights and deputy chairperson of the KZN Rental Housing Tribunal
Rental Watch – The Star