Landlord ordered to restore generator use to gym during load-shedding

A landlord has been ordered to restore a generator’s power supply to a gym during load-shedding, after disconnecting it despite years of letting the gym operators use the generator.

In early December, the Cape Town high court ruled the landlord had taken the “law into [its] own hands”.

For more than a decade, Bodies Under Construction and other fitness operators rented a space to run a high-end gym in the Point Mall Shopping Centre, in Cape Town. Their landlord is Permasolve Investments. Ten years ago, Permasolve installed a generator that automatically kicks in when load-shedding starts.

The gym requires the alternative power supply to conduct its business. Due to the devastation load-shedding has on operations, the gym operators say this has prevented financial and reputational disaster.

However, the gym operators have never paid any additional fee for the generator, since the original lease agreements were drawn up before the generator was installed.

Then, earlier this year, Permasolve “out of the blue”, according to the gym operators, demanded the gym operators pay for the generator’s power supply. If they did not pay for costs of the generator, Permasolve threatened to disconnect the gym.

The gym operators did not agree to Permasolve’s demand but did agree to enter into private arbitration to resolve the dispute privately.

Despite agreeing to enter into arbitration, in November, Permasolve disconnected the gym from the generator. The gym operators urgently approached the courts. Cape Town high court judge Derek Wille ordered Permasolve to immediately reconnect the power supply to the gym.

In December, Wille explained his reasons for his immediate response. He noted this was a “spoliation” application: that is to urgently restore possession or use of property unlawfully taken by another person.

Spoliation is meant to urgently restore the status quo. In this case, to restore the power to the generator until the private arbitration dispute is resolved.

He noted the use of the generator’s power supply “was historic in nature. It was critical to the use of the premises”. He noted the gym operators’ “fate was tied to the unpredictable and ever-changing load-shedding schedule” and the generator prevented this.

He slammed Permasolve, which he said “behaved unlawfully by disconnecting the premises from the alternative power supply” and doing so “despite actively and continuously engaging in discussions aimed at referring the underlying dispute to arbitration for swift resolution”.

Permasolve was ordered to restore the power supply and pay the gym operator’s legal costs.

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