HOVE v CITY OF HARARE

HIGH COURT, HARARE

[Opposed Application HH 205-16]

January 19 and March 23, 2016

MUREMBA J

Constitutional law  – Constitution of Zimbabwe, 2013  – Declaration of Rights  – Section 77  – Right to water  – Whether right infringed by local authority unilaterally cutting water supplies without a court order  – Applicant disputing water bill  – Relevance of genuineness of dispute.

The applicant, the owner of a property situated in Harare, had been threatened with disconnection of water supplies by respondent after repeatedly failing to pay his water bill. He had, however, continued to receive water supplies. The applicant approached the High Court claiming that his right to water, protected by s 77 of the Constitution, would be infringed if the respondent were to proceed with its threats to disconnect water supplies to his premises. He sought an interdict. The respondent argued that disconnections were the only way it could collect revenue to provide the essential service of water.

Held, that the right to water under s 77 of the Constitution does not prohibit disconnections of water services for non-payment provided the disconnection is not arbitrary.

Held, further that where water charges are genuinely disputed, it would be contrary to s 77 of the Constitution to disconnect water supplies without affording the consumer a reasonable opportunity of redress through the courts. In casu, the applicant was not genuine and a disconnection without a court order would not infringe his right to water.

Case cited:

Mushoriwa v City of Harare 2014 (1) ZLR 515 (H), followed

Legislation considered:

Constitution of Zimbabwe Amendment (No 20) Act, 2013, ss 44, 69, 69 (3), 77, 77 (a), 165 (1)(c), 276, 276 (2)(b)

Urban Councils Act [Chapter 29:15], Parts XVIII, XIX, para 69 (2)(e)(i) of Third Schedule

Water By-Laws (SI 164 of 1913), by-law 8

Book cited:

Maja I The Law of Contract in Zimbabwe (Maja Foundation, Harare, 2015)

E Matsanura, for the applicant

C Kwaramba, for the respondent

MUREMBA J:

The applicant is the lawful owner of the property known as No 7 Atkinson Road, Hillside, Harare. The property is being used for the legal practice of TK Hove Law Chambers. The applicant is the sole partner of TK Hove Law Chambers.

This is an application to, inter alia, interdict the respondent from unilaterally disconnecting water supplies to the applicant’s property without a court order. The applicant also wants the respondent interdicted from unilaterally charging him commercial rates for the use of water at the said property. The relief that the applicant is seeking is couched as follows:

“It is ordered that:

1. The respondent and all its employees be and are hereby interdicted from interfering whatsoever with, disrupting or terminating the applicant’s water supply without a court order.

2. Respondent be and is hereby ordered to supply applicant with a detailed breakdown of the charges levied on the rates and water bill.

3. Respondent be and is hereby ordered to charge applicant domestic tariffs for water and rates, calculated from the 2nd of February 2009 to date.

4. That the respondent shall pay the costs of suit on the higher scale of legal practitioner and client scale only if it opposes the application.”

In his founding affidavit the applicant averred that the basis of the application is that in November 2014 the respondent sent him a water bill indicating that he owed it US$ 18 876. He said that by way of two letters, which letters he did not attach as proof, he wrote to the respondent asking for a breakdown showing how the figure of US$ 18 876 was arrived at. The applicant averred that the respondent did not supply the breakdown, but instead continued to send bills. At the time of the application the bill stood at US$ 19 663.93. The applicant stated that the respondent’s employees are now threatening to disconnect the water supplies if no payment is made. The applicant said that he is now afraid that the respondent will disconnect the water on the basis of a disputed water and rates bill without a court order. Citing the case of Mushoriwa v City of Harare 2014 (1) ZLR 515 (H), the applicant averred that this Court has already made a decision that in a case where the water bill is disputed, it is unlawful for the respondent to unilaterally cut water supplies to the consumer without first obtaining a court order.

The applicant said that the balance of convenience favours the granting of the interdict because he has over 10 employees at the premises. They need water for health and hygienic purposes. The applicant stated that there is no other remedy available to him as the respondent is the only authority that is mandated to supply water to him. He said that if the water supplies are cut he will not be able to access running water and he together with his employees will suffer irreparable harm. He said that more importantly, from a constitutional point of view, s 77 (a) of the Constitution of Zimbabwe Amendment (No 20) Act, 2013 (“the Constitution”) provides that every person has the right to safe, clean and potable water. The applicant said that if the respondent proceeds to cut off the water supply without a court order its actions will be unconstitutional and illegal. He stated that the cutting of the water supply will infringe on his constitutional right to water.

The applicant also stated that he was informed that his premises were designated as commercial premises (as opposed to residential premises) without his knowledge or consent. He stated that the respondent had no right to unilaterally designate his premises as commercial to his prejudice. He said that the respondent should have given him the notice of intention to charge commercial rates and allowed him to make representations first before charging him with same.

In responding to the application, the respondent in its opposing affidavit raised a point in limine to the effect that the issue about the applicant being charged commercial rates as opposed to domestic rates for the use of water is a matter which falls squarely within the expertise and province of the Administrative Court. It stated that this Court should decline to exercise its inherent jurisdiction and refuse the application on that basis. In his answering affidavit the applicant stated that the primary relief he was seeking is an interdict and the issue of the charging of commercial rates is ancillary relief, and as such this court has jurisdiction to deal with the matter.

However, in the heads of argument, the respondent seemed to have abandoned the point in limine. At the hearing the respondent’s counsel did not pursue the point in limine.

In responding to the merits the respondent said that it had sent several bills to the applicant for which he did not pay. It said that he is in breach of a tacit agreement between the parties in terms of which the applicant must pay for water services supplied to him. It stated that the applicant cannot be allowed to enjoy service provision such as water supply without meeting his reciprocal duty to pay for it. The respondent stated that the applicant did not attach to his application proof of the queries he says he made to it, and furthermore, he did not attach proof that he had been paying any money towards settling even that which he admits owing. More importantly, the respondent averred that the applicant never queried with it the water bills.

The respondent stated that water disconnections are done in terms of the law which is by-law 8 of the Water By-Laws (SI 164 of 1913) (“the By-Laws”) which is borne directly from para 69 (2)(e)(i) of the Third Schedule of the Urban Councils Act [Chapter 29:15] (“the Act”).

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