Mashudu Netsianda, Senior Court Reporter
A RESIDENT from Bulawayo’s Pelandaba West suburb has taken Environment, Water and Climate Minister Oppah Muchinguri-Kashiri and the Bulawayo City Council (BCC) to court over delays in connecting water and sewer to some parts of the suburb.
Mr Nylon Gatsheni (50) has through his lawyers Dube Banda, Nzarayapenga Legal Practitioners, filed a court application at the Bulawayo High Court citing Minister Muchinguri-Kashiri, BCC and Mr Edmund Campion Takawira Shonhiwa, the land developer of Pelandaba West Housing Project, as respondents.
In papers before the court, Mr Gatsheni is also seeking leave to institute a class action in terms of section 3 of the Class Actions Act and section 85 of the Constitution allowing him to rope in 37 other residents to collectively mount the legal challenge.
Mr Gatsheni wants the court to direct the respondents to speed up the connection of water and sewer, arguing that the delay was a health time bomb ready to explode.
In his founding affidavit, Mr Gatsheni said due to the respondents’ delay to connect water, he is now forced to buy water from neighbouring suburbs at an average cost of $15 per month.
“The lack of water and sewer connection at Pelandaba West is a recipe for a health disaster. They are 37 individuals who are members of the class of persons aggrieved by the actions of the respondents in failing or neglecting to connect water to the residents of Pelandaba West Housing Project,” he said.
“I am a pensioner and will mostly encounter serious challenges to enforce my claim as an individual since I do not have enough resources to mount a legal challenge against the respondents. A class action is the appropriate recourse to enforce my right.”
Mr Gatsheni said the respondents’ actions were a violation of his fundamental right to safe, clean and potable water.
“The State is obligated to take reasonable legislative and other measures within the limits of the resources available to it, to achieve the progressive realisation of this right. The positive duties are imposed on the State by section 7 (a) of the constitution as read with section 6 of the Water Act and section 183 of the Urban Councils Act,” argued Mr Gatsheni.
He said Minister Muchinguri-Kashiri is expected to fulfil her obligation by taking meaningful steps to address the issue of water.
“The Government must ensure that organisations such as BCC that has a responsibility to supply and distribute water in accordance with the law are afforded the resources to enable them to do so. The Minister has the primary responsibility to ensure that the institution that she delegates to supply water is equipped to carry out the mandate,” he said.
Mr Gatsheni said the class of people whom he is representing in this case, are low income earners.
“I submit that in all the circumstances of this case a class action is appropriate and I pray for an order in terms of the draft,” he said.
Minister Muchinguri-Kashiri, in her notice of opposition filed through the Civil Division in the Attorney General’s Office, said the applicant ought to have exhausted internal remedies first before engaging the courts.
She said it is BCC’s obligation to supply treated water to its residents although the Zimbabwe National Water Authority (Zinwa) plays a restricted role of providing raw water.
The Permanent Secretary in the Ministry of Environment, Water and Climate, Ms Grace Tsitsi Mutandiro said her ministry has taken steps to improve the provision of water services and is negotiating several agreements on the construction of dams and water projects.
She said Mtshabezi Dam and pipeline project, which was commissioned in October 2016, will help further boost supply to Umzingwane Water Treatment Plant thereby improving BCC’s water supplies.
“It is on that basis that the Minister cannot be said to have failed to avail water in terms of the Water Act, the constitution and international law,” said Ms Mutandiro.
She said her ministry has initiated Command Water Harvesting by drilling boreholes across the country to alleviate water challenges.
“The first respondent (Minister Muchinguri-Kashiri) is seized with the plight of Pelandaba West residents and would intervene accordingly as well as engage BCC to address the water crisis,” said Ms Mutandiro.