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NO COMPENSATION FOR TENANTS AFFECTED BY FLOODS

28/01/2021 23:58:00 BY PHUMELELE MKHONTA

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MBABANE - Tenants who suffered losses as a result of damages to their property during the recent floods, might be left out in the cold because this was an act of God.

While some dismayed tenants are hopeful that they will seek compensation for the damages to their property, in particular from their landlords, following the floods that were experienced last Sunday as a result of Cyclone Eloise, legal practitioners have come out to state that it was highly unlikely for them (tenants) to be compensated.

They said this was because legally, an act of God exonerated landlords from compensating their tenants for loss incurred during natural disasters. Also, this principle was said to protect insurance companies from proposed claims after natural disasters, though others long did away with this provision.

Responsible

In legal terms, an act of God is a natural hazard outside human control, such as an earthquake or tsunami, for which no person can be held responsible. An act of God may amount to an exception to liability in contracts or it may be an insured peril in an insurance policy.

Explaining an act of God in legal terms, Attorney Sipho Gumede said it was a principle, and not an Act of Parliament, which removed negligence from the party that was being held accountable.

He said no one created floods, therefore, it was not, according to this principle, expected for anyone to be held accountable for damages incurred.

“An act of God applies when something is beyond human control. However, some people can argue that others can build on river banks or low lands, but this can be argued that the last time there was such a flood was in 1984, which was 35 years ago,” said Gumede.

Natural

Senior attorney Sikhumbuzo Simelane said an act of God was mainly effective when a war erupted or there was a natural disaster like the recent floods.

“Natural disasters are normally not foreseeable, making them almost unavoidable and that is when this principle is applied.

“Sometimes, insurance companies have a clause where it reads that they can pay for theft, fire and other damages excluding cases of an act of God, which include storms, floods, strikes, wars and other natural disasters,” said Simelane.

He said in cases where there was a repetitive disaster during a storm, the injured people could take their chances to file a claim.

“There are some buildings which flood every time there are torrential rains, especially some business centres. The tenants in that case can take the owner of the building, the contractor and the town council which approved the building, to task. However, it is highly unlikely that they will succeed in their cases, unless they involve experts (who can prove otherwise),” said Simelane.

Another lawyer, who spoke on condition of anonymity, echoed Simelane’s words, saying there were cases where landlords could be held accountable for the damages of the tenant’s property.

However, the lawyer clearly stated that the tenant should be able to prove, beyond reasonable doubt, the negligence of the landlord. “The landlord can also plead an act of God, where the natural disaster could not be anticipated or prevented,” said the lawyer.

Lawyer Thabiso Mavuso said as much as an act of God was an unfortunate incident which the normal human being had no control over, there were limits to it. “Principles have limits and so does this one. We are now living in an era where floods are usually anticipated and this anticipation can give tenants at least a day to make measures which may minimise harm. “If a structure is well built and all the necessary measures were taken to minimise the effects of a natural disaster, the princible of an act of God will be applied and passed,” said Mavuso. Mavuso, however, explained that if a building flooded every time there was a storm or mere heavy rain, then the owner of the building should be held accountable and pay for the damages.

“There is one shopping centre that floods every time there is heavy rain. It floods at least once a year. I do not believe it can plead an act of God then because it is not seen trying to stop or minimise the incident from repeatedly happening,” he said.

According to Legal Resources website, acts of God provisions, also called ‘Force Majeure’ clauses, relate to events outside human control like flash floods, earthquakes or other natural disasters.

Generally, these provisions eliminate or limit liability for injuries or other losses resulting from such events. In contract law, an act of God may be interpreted as a defence against breach for failing to perform based on the concepts of impossibility or impracticality.

When an act of God intervenes in the performance of a contract, the promise to perform is often discharged because of the unforeseen circumstance.

There are circumstances where one cannot avoid tort liability for acts of God, simply because they should have planned for the natural disaster as a foreseeable possibility. For example, if lightning strikes a metal structure, injuring those within, the builder or building owner may be liable to those injured for not taking steps to properly redirect lightning strikes to the ground and away from those within.