Innocent Ruwende, Harare Bureau
Thousands of defaulters face imminent water disconnections after the Supreme Court said councils can terminate water suppliers in line with their by-laws.
The, court said local authorities can disconnect water supplies to defaulting consumers in order to safeguard the rights of paying consumers, bearing in mind that there are treatment and subsequent pumping costs, that are unavoidable.
The Court ruled that water disconnections by local authorities do not in any way contravene Section 77 of the country’s Constitution which guarantees the right to safe, clean and potable water.
The ruling was made in a case in which Harare City Council was appealing against a High Court judgment granting a provisional order in favour of lawyer Mr Farai Mushoriwa, who was contesting disconnection of water at his flat in Harare.
Major local authorities are owed over $1 billion by ratepayers.
Harare City Council is owed over $800 million, Bulawayo $264 million, Gweru over $80 million, Mutare over $50 million and Chitungwiza over $70 million, among others.
Justice Bharat Patel quashed the lower court’s decision that had stopped all municipalities countrywide from disconnecting water supplies for defaulting residents without seeking recourse at the courts.
“The provisional order granted by the court a quo be and is hereby set aside,” said Justice Patel, partially allowing Harare City Councils’ appeal.
He said the council’s power to disconnect water supply was reasonable and does not in any way contravene Section 77 of the country’s Constitution that guarantees the right to safe, clean and potable water.
The provisional order which was granted in Mr Mushoriwa’s favour by the High Court had outlawed water disconnections in the absence of a court order.
The lower court ruled that the by-law was an illegal instrument drafted by municipal authorities in violation of the Constitution and the enabling statute.
Section 8 of the Water by-law 164/1913 reads: “Council may, by giving 24 hours’ notice in writing and without prejudicing its right to obtain payment for water supply to its consumer, disconnect supplies to the consumer:
“(a) If he or she shall have failed to pay any sum, which in the opinion of the council, is due under these conditions or the water by-laws.”
However, Justice Patel said his reading of Section 77 of the Constitution is that the possible violation of its provisions is only implicated where the State or a local authority fails to provide any or adequate water supply to any given community or locality.
“Bearing in mind the enormous economic and budgetary considerations that would ordinarily arise in the provision of safe and clean water to a large populace, it cannot be said that the disconnection of water supply by reason of non-payment of water consumed in any specific instance constitutes an infringement of the constitutional right to water,” said Justice Patel.
“Indeed, it may be necessary to do so to ensure that the majority of non-defaulting consumers continue to enjoy their respective rights to water.
“In other words, the power to disconnect the water supply of any individual consumer in the manner prescribed is a necessary incident of the measures necessary to safeguard the rights of other consumers at large.”
Justice Patel said the approach accords squarely with the dictates of Section 86(1) of the Constitution.
He said fundamental rights and freedoms must be exercised reasonably and with due regard for the rights and freedoms of others.
Justice Patel said he was of the opinion that the application and enforcement of the 1913 By-laws do not negate or impede the progressive realisation of the right to safe, clean and portable water as envisaged by Section 77 of the Constitution.
“Thus the appellants’ power to disconnect water supplies for non-payment of water accounts, provided it is reasonably applied and enforced, and exercised in strict compliance with the conditions prescribed in the by-laws, is both statutorily and constitutionally unimpeachable,” he said.
“It follows from the ongoing that the appeal fails in relation to the specific interim relief granted by the court a quo in favour of the respondent, but succeeds in establishing the overall legality of the by-laws relied upon by the appellant.
“For this reason, I think it just and equitable that neither party should be penalised with the costs of this appeal or the costs a quo.”
As for the interim relief granted, he said, this has been overtaken by events and rendered otiose (useless) in as much as the respondent (Mr Mushoriwa) is no longer in occupation of the premises in question and the provisional order granted by the court below should be set aside in its entirety.
The court ordered that the city’s appeal be partially allowed and the provisional order granted by the High Court be set aside.