Got this from Rawson:
*Disclaimer: Information supplied courtesy of Attorneys SSLR Inc,
Cilna Steyn (Director) Tel: 086 100 SSLR (7757)
www.rawson.co.za
Day Zero for Rental Market
Our beautiful country is faced with one of the worst droughts in history. Day Zero for Cape Town has already been
moved up to 12 April 2018. With this date fast approaching, it leaves the rental market with some uncertainty
regarding the legal position of landlords and tenants affected by this crisis. Would landlords be required to pro-
vide water to tenants? Would tenants be required to maintain a property including gardens, drains and the likes
without water available to them?
A severe drought like this, is in terms of South African Common Law, Vis Major or an Act of God. South African Com-
mon Law is based upon Roman Dutch Law, which is shaped and refined in our Courts by case law. The principle of
Vis Major (Act of God) indemnifies parties against claims by one another for damages suffered as a result of an Act
of God. This principle will always find application in lease agreements.
In rental agreements where no written lease agreement was concluded, in other words a verbal or tacit lease
agreement, this principle will automatically contain this protection for both parties. The drought would not allow
the tenant the opportunity to cancel the lease agreement or claim damages from the landlord or due to failure to
supply water to the premises. The same principal applies to the landlord, this will mean that a landlord will not be
allowed to cancel the lease agreement, have a tenant vacate or not allow a tenant to take occupation of a premises
because of the drought.
In the majority of written lease agreements, this principle will be dealt with at length. The typical lease agreement
will clearly indicate that no Act of God can give rise to a claim against either party. This would have the effect that
the tenant would not have the right to cancel the lease agreement because of the landlord’s inability to supply
water due to drought. An example of this would be a tenant deciding to cancel a lease agreement in Cape Town
in order to relocate. If, however the lease agreement is governed by the Consumer Protection Act (CPA) the tenant
would in any event be entitled to cancel the lease agreement with 20 business days’ notice and then only face the
reasonable cancellation penalty, as contemplated in the CPA. The drought would not give the tenant grounds to
cancel the lease agreement, without penalty.
In terms of a lease agreement the landlord has an obligation to provide the tenant with undisturbed use and
enjoyment of the premises, water supply to a premises is incidental to occupation, for this reason the landlord
would never be allowed to limit water supply to a premises. However, in a case like this where the reason for not
supplying water is a result of an Act of God then the landlord cannot be held responsible for the lack of supplying
the service. It is essential to carefully consider the terms of the lease agreement regarding this aspect and not
make any assumptions.
This position is simple enough in lease agreements where the tenant pay utilities billed separately, as this would
simply mean that the amount billed by the municipality for water would be less, as the water consumption is less
due to the drought. As such not affecting either party in that regard in any way. However, a landlord is not enti-
tled to receiving payment for a service that is not supplied. This would be the position where a lease agreement
provides that water and electricity form part of the rental payable and not metered separately. If the amount paid
to the landlord can clearly be quantified for the portion of water supply, that amount should be reduced to reflect
the true water consumption by the tenant. If the amount that is paid for water consumption cannot clearly be
quantified, but simply forms part of the rental amount, this could lead to disputes that could run into very costly
and time-consuming litigation.
In the face of a natural disaster, as currently present in Cape Town, the principles of fairness and equity would
prevail above all else. In cases where water is included in the rental and cannot be quantified specifically, the
suggestion would definitely be for the landlord and the tenant to consider this, have a meaningful conversation
regarding this and find an amicable solution that would be fair to both parties. Neither one of the parties can rely
on a damages claim, as the other party would definitely have the defence of Vis Major and could lead to thousands
of unnecessary court or tribunal cases creating undue pressure on the legal system.
It is heart breaking that our country is faced with a disaster like this and all citizens should do their part to help one
another to get through this as comfortably as humanly possible. As SSLR Inc. we will do our utmost best to assist
the rental market in this crisis. Please feel free to contact us regarding this matter.