HOPCIK INVESTMENT (PVT) LTD v MINISTER OF ENVIRONMENT, WATER & CLIMATE & ANOR

HIGH COURT, HARARE

[Opposed Application HH 137-16]

January 26 and February 17, 2016

DUBE J

Constitutional law  –  Constitution of Zimbabwe, 2013  –  Declaration of Rights  –  Section 77  –  Right to water  –  Obligation on the State to ensure and protect right to water  –  Nature of obligation defined  –  Role of local authorities in ensuring realisation of the right to water.

The applicant, an owner of a property situated in Harare, had not received any supply of water for approximately three years. Other persons in Harare were receiving a regular supply of water. The applicant approached the High Court claiming that its right to water, protected by s 77 of the Constitution of Zimbabwe, 2013, had been infringed by the respondents (Government and the City of Harare) who had failed to provide and maintain an adequate supply of water to it. The respondents opposed the application on the sole basis that they lacked the resources.

Held, that the failure of the State to ensure a minimum supply of safe, clean and potable water constituted a breach of the applicant’s right under s 77 of the Constitution of Zimbabwe, 2013.

Held, further, that the obligation on the State and local authorities to provide and maintain adequate supplies of water does not require them to do what is beyond their means but means that they must take reasonable steps such as rationing water and distributing it fairly.

Held, further, that the State may only be absolved from its obligations in this regard if it gives good and sufficient reasons for its failure.

Case cited:

Mazibuko and Others v City of Johannesburg and Others [2009] ZACC 28; 2010 (4) SA 1 (CC); 2010 (3) BCLR 239 (CC), referred to

Legislation considered:

Constitution of Zimbabwe Amendment (No 20) Act, 2013, s 77

Urban Councils Act [Chapter 29:15], s 183

Water Act [Chapter 20:24], s 6

Instruments considered:

United Nations Committee on Economic, Social and Cultural Rights General Comment 15

United Nations General Assembly Resolution 64/292 of July 28, 2010

PC Paul, for the applicant

E Mukucha, for the first respondent

R Mhlanga, for the second respondent

DUBE J:

The applicant seeks an order compelling the respondents to supply potable water per week to its premises.

In 1955 Ezra Taaft Benson, US Secretary of Agriculture made the following observations about the water situation in his country. “I have little need to tell you that water has become one of our major national concerns”. These sentiments are equally applicable to the water situation in this country at the moment and in particular in Harare. Water has become the cry of Harare. It is on everyone’s lips. Residents of the town have no access to clean drinking water. Taps have run dry in this town for a number of years now. Pipe-bursts are the order of the day. Diseases like cholera and typhoid have wreaked havoc in this town. Residents have had to resort to digging wells and boreholes to sustain themselves. The city fathers have resorted to folding their hands and watching the melee amid promises to rectify the situation.

Water is the most basic of all needs. Without water there is no life. Access to water has become a human right in this country and is guaranteed in our Constitution. The responsible authorities have a duty to ensure that they provide residents access to a reliable supply of potable water. The authorities lack the will to accomplish this objective. It is time for the authorities to take reasonable and satisfactory steps to rectify the situation and ensure adequate supplies of water. The responsible authorities cannot be allowed to merely observe and adopt a nonchalant attitude. Ensuring the realisation of this right will require concerted efforts of all concerned. This frustration has led to a daring resident resorting to getting the relevant authorities to account for their actions and realise its rights through litigation.

The applicant is the owner of a property situated at Ballantyne Park, Harare. The first respondent is the Minister responsible for the administration of the Water Act [Chapter 20:24]. The first respondent also has the responsibility to regulate the supply of water by the second respondent. The second respondent is the local authority established in terms of s 183 of the Urban Councils Act [Chapter 29:15]. Its mandate is to provide and maintain a supply of water within or outside the council.

The applicant avers that there has been no supply of water to the area in which the applicant’s property is located for approximately three years. The applicant submitted that other properties in Harare are receiving a regular supply of water. The applicant conceded that the second respondent has certain difficulties in making water available to all residents of the city but argued that it does not appear that the second respondent is doing all that is necessary to provide an equitable distribution of water to all the inhabitants of the city. The applicant submitted further that the second respondent is acting in an irresponsible manner in that it has failed to attend to water pipes breaking, which remain unrepaired for long periods of time depriving citizens of water. The applicant contended that the second respondent is not taking its responsibility seriously and has not done enough to ensure an adequate supply of water to residents. The applicant prays for an order compelling the respondents to supply to 15000 litres of potable water to the applicant’s premises on a weekly basis.

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