Judgment record
City of Kwekwe v Zimbabwe National Water Authority
HB 154/19HB 154/192019
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HC 1349/17
CITY OF KWEKWE
Versus
ZIMBABWE NATIONAL WATER AUTHORITY
IN THE HIGH COURT OF ZIMBABWE
TAKUVA J
BULAWAYO 9 MAY 2018 & 17 OCTOBER 2019
Opposed Application
P. Magwaliba for the applicant
Advocate P. Dube for the respondent
TAKUVA J: This is a court application for a declaratur in terms of s14 of the High
Court Act Chapter 7:06. The applicant is a local authority duly instituted in terms of the Urban
Council’s Act (Chapter 29:15) which is the authority responsible for the management of the City
of Kwekwe.
The respondent is a body corporate duly established in terms of the Zimbabwe National
Water Authority Act [Chapter 20:25].
On 15 February 2013, the parties entered into an agreement for the provision of water to
applicant’s rate payers. In terms of that agreement, the applicant is the consumer while the
respondent is the provider of raw water from Sebakwe Dam. Having entered into this contract
freely and voluntarily, the parties agreed to be bound by the terms and conditions contained
therein. Agreements of this nature are created in accordance with section 18 of the respondent’s
enabling Act. Also, the agreement specifically states that the water the respondent sells to the
consumers shall be purchased by those consumers.
Applicant and respondent had a dispute over non-payment of a debt in the region of
US$1 576 693,24 in breach of clause 4 of the agreement. The respondent then reduced the
quantity of water supplied to the applicant to 20%. Aggrieved, applicant filed this application
for an order couched in the following terms:
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“1. The partial or complete disconnection of water supply to the applicant for failure
to be up to date with raw water payments is outside the provisions of the
Zimbabwe National Water Authority Act [Chapter 20:25] and the Constitution
and is therefore unlawful.
2. Further that:
The applicant is a tier of government and the respondent as an institution or agent
of government should work together for the provisions of water to the citizens.
3. Further that:
Any reference to a Statutory Instrument or any other document authorising
disconnection of raw water supply to the applicant is contrary to law and is
accordingly null and void.
4. It is consequently ordered that:-
(a) Any partial or complete disconnection of raw water supply to the applicant
by the respondent which have not been subject of a judicial determination
are unlawful and cannot be enforced in any court of law.
(b) If the respondent opposes this application it shall meet the costs of this
application.”
The applicant’s case can best be understood by examining closely its Town Clerk’s
founding affidavit. In paras 5.9, 5.10, 5.11 and 5.13 thereof he states:
“What is of concern is that the respondent has on a number of occasions acted outside
both the constitution and its enabling legislation by partially or completely stopping water
supply to the applicant. Such an act (s) is not only outside the powers given to the
respondents (sic) in terms of the law but also unconstitutional and unlawful. Such action
is taken without being subjected to judicial determination. In other words the respondent
simply acts outside the law.
5.10 What is clear however is that the respondent is mandated to ensure that
there is availability of water to the citizens. My understanding is that the
progressive realization of the right is only subject to the availability of
resources. What the respondent does is not based on the issue of
availability of resources but simply aimed at frustrating the constitutional
mandate on both the national government, local authorities and
constitution/rights of government in ensuring the progress realization of
the right to water.
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5.11 The respondent has not been involved in the maintenance of the
Sebakwe Dam for a long time. It has not carried out elementary
maintenance work. As a result of that it is now very expensive to
treat water for the benefit of residents. This eventually affects the
capacity of the applicant to pay respondent for the supply of raw
water to the respondent (sic). However, whether applicant pays or
fails to pay for the raw water supplied, the respondent has no
power in terms of our law to stop water supply to the applicant.
5.12 …
5.13 It is therefore of importance that the court interprets the law and
declare once and for all that the respondent does not have the right
to stop partially or completely water supply for the applicant. Such
a declaration will put an end to the frequent water cuts by the
respondent which are done as and when it pleases. This is a matter
which is appropriate to grant the declaratory order sought.” (my
emphasis)
During the hearing counsel for the applicant argued that the respondent has no right to
reduce the supply of water to the applicant due to non payment. He further argued that such
reduction hinders the applicant’s ability to provide clean water to its rate payers in terms of s183
and 189(1) of the Urban Councils Act [Chapter 29:15]. It was further contended that the
applicant’s right is one of a public nature whose violation is tantamount to a violation of section
77 of the Constitution of Zimbabwe.
It was conceded to by the applicant that it had previously unsuccessfully applied for an
interdict on the same facts. It however disputed that res judicata as a plea would arise because in
the previous application, it merely relied on the requirements of mandamen van spolie whereas
in casu it seeks a declaratory order where issues are totally different in that a constitutional
question now arises. The application was opposed by the respondent on the following grounds:
1. That the applicant has not exhausted domestic remedies available to it in terms of the
Zimbabwe National Water Authority Act [Chapter 20:25].
2. That applicant’s claim is res judicata in that it once filed an urgent chamber
application against the respondent in this court under case number HC 2611/14
wherein it sought to interdict the respondent from disconnecting its water supply.
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Since the cause of action for that application was founded on the dispute of an alleged
unlawful and unconstitutional disconnection of applicant’s water supply by the
respondent the plea of res judicata applies.
On the merits, respondent’s argument was that:
1. Applicant has not proved that respondent disconnected its water supply.
2. Respondent admits that it simply reduced the water supply within the scope of
its water supply agreement with the applicant. Such reduction is neither
unlawful nor unconstitutional in that it is done in accordance with clause 16 of
the contract between the parties.
3. In terms of the doctrine of sanctity of contract, applicant is bound by the terms
of the contract. By accumulating huge arrears, applicant has according to its
own admission breached clause 4 of the agreement. Respondent has already
instigated a separate legal action under case number HC 1259/14 to recover
the aforementioned amount. Hence the decision not to disconnect but to
reduce the quantity of thereof.
4. Applicant’s assertion that the disconnection or reduction is unconstitutional
defies logic in that respondent is equally a statutory body as is applicant and it
is sustained by supplying water to its consumers at a charge in terms of
section 5(1)(h) of its Act. What threatens the realisation of the right to clean
water is applicant’s failure to pay for the water charge levied by the
respondent.
5. In any event, even assuming there was disconnection of applicant’s water
supply, the same would be lawful within the confines of clause 25 of the water
supply agreement which permits respondent to disconnect consumers’ water
supply in the event of any default in payment of the supply charges.
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Issues
The following are the issues for determination in this application.
1. Whether or not applicant’s claim is res judicata
2. Whether or not applicant has exhausted domestic remedies
3. Whether or not the applicant is entitled to a declaraur to the effect that respondent’s
conduct was unlawful and unconstitutional. In other words whether or not respondent
has power to disconnect or reduce supply for non- payment of a debt in light of the
residents’ right to water?
At the hearing the parties argued the points in limine and moved to the merits of the case.
My view is that any resolution of the preliminary points will not dispose of the case.
Consequently, I move to deal with the merits of the case.
The law
The competency for this court to grant a declaratory order in a situation that pertains is
anchored in section 14 of the High Court of Zimbabwe Act 1981 which provides that:
“The High Court may, in its discretion, at the instance of any interested party, inquire into
and determine any existing, future or contingent right or obligation, notwithstanding that
such person cannot claim any relief consequential upon such declaration.”
NDOU J in Mpukuta v Motor Insurance Pool & Ors 2012 (1) ZLR 192 (H) set out the
requisites for a declaratory order in the following words:
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“The condition precedent to the grant of a declaratory order is that the applicant must be
an interested person in the sense of having a direct and substantial interest in the subject
matter of the suit which could be prejudicially affected by the judgment of the court. The
interest must relate to an existing future or contingent right. The court could not decide
abstract academic or hypothetical questions unrelated to such interest. That is the first
stage in the determination by the court. At the second stage of the enquiry, it is
incumbent upon the court to decide whether or not the case in question is a proper one for
the exercise of its discretion under s14 of the High Court Act Chapter 7:06. In this regard
some tangible and justifiable advantage in relation to the applicant’s position, with
reference to an existing future or contingent legal right or obligation must appear to flow
from the grant of the declaratory order. A matter that does not present a live controversy
having practical consequences is not justifiable.”
In casu, while the applicant has a direct and substantive interest in the subject matter of
the suit which could be prejudicially affected by the judgment of the court, it is doubtful whether
this case is a proper one for the exercise of the court’s discretion under section 14. In other
words can it be said that in casu there is some tangible and justifiable advantage in relation to the
applicant’s position with reference to the legal right that appears to flow from the grant of the
declaratory order?
The respondent is a creature of statute. Its functions are stated in section 5(i) of the
ZINWA Act. The section provides that:
Subject to this Act, the Water Act [Chapter 20:24] and any other enactment the functions
of the Authority shall be,
(a) To advise the Minister on the formulation of national policies and standards on –
(i) water resources planning, management and development; and
(ii) water quality and pollution control and environmental protection …
(iii) .…
(iv) …
(v) water pricing; and
(a) subject to the Water Act [Chapter 20:24] to assist and participate in or
advise on any matter pertaining to the planning of the development,
exploitation protection and conservation of water resources; and
(b) to exploit, conserve and manage the water resources of Zimbabwe with the
object of –
(i) securing equitable accessibility and efficient allocation, distribution, use and
development; and
(ii) providing in both the short and the long term, adequate water on a cost
effective basis; and
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(iii) taking appropriate measures to minimize the impacts of droughts, floods or
other hazards; and
(c) to promote an equitable, efficient and sustainable allocation and
distribution of water resources; and
(d) to encourage and assist local authorities in the discharge of their functions
under the Rural District Councils Act [Chapter 29:13] and the Urban
Councils Act [Chapter 29:15] with regard to the development and
management of water resources in areas under their jurisdiction and in
particular or, the provision of portable water and the disposal of waste
water; and
(e) …
(f) …
(g) to operate and maintain any water works owned or managed by the
Authority and to sell any water therefrom, to dispose of waste water to
construct boreholes and to provide design and construction services.” (my
emphasis)
Section 30 (1) of the Act provides that the Authority may “with the approval of
the Minister and subject to the Water Act [Chapter 20:24] fix charges for (a) the sale of
raw or treated water from water works operated or controlled by the Authority …” (my
emphasis)
The Water Agreement
It is common cause that the parties entered into a contract whereby the respondent would
sell water to the applicant subject to the terms and conditions more fully set out therein. Section
3 thereof states that;
“(3) Supply of water to the consumer
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That subject to the availability of water, ZINWA agrees to supply to the consumer during
the subsistence of this agreement the consumer’s allocation but the question of the
availability of water shall be determined by the Chief Executive Officer whose decision
shall be final. Subject to the provisions of the Water Act, in the event of a shortage of
water in any supply period, water supply may be reduced for any purpose according to
the water allocation procedures adopted by the Catchment Council concerned. ZINWA
shall take all reasonable steps to provide water required by the consumer, but it does not
guarantee any particular quantity or quality of water, neither shall ZINWA be responsible
in any manner whatsoever for any shortages in quantity or quality “ZINWA reserves, in
the event of any shortages of water occurring, the right to ration supplies and/or reduce
the consumer’s allocation.”
Charges for water are provided for in clause 4 which inter alia states that:
“Payment should be made within a period of fourteen days upon invoicing. Should
payment not be made within fourteen days of the date of each account, interest will be
charged on such unpaid amount at the rate of FOUR COMMA FIVE PER CENTUM
(4,5%) per annum in excess of the prime bank on overdraft interest rate from time to time
prevailing for the period between due date and the date of payment..”
Respondent is permitted in terms of clause 16 of the agreement to vary the flow of water
to consumers. It states;
“That ZINWA may supply the water intermittently and vary the rate of flow for the
purpose of maintenance or repairs or other reasonable cause and where possible after due
and suitable notice and after consultation with the consumer.
In this connection it is recorded that it may be expedient for ZINWA to supply portions
of the consumer’s allocation by means of bulk flushes of water which the consumer will
be required from time to time to store in storage works to be provided by the consumer.”
The contract provides for default in clause 25 as follows:
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“25. Default
That notwithstanding the foregoing in the event of the consumer failing to pay the
charges due in terms hereof by the due date and not having rectified such a breach within
thirty 30) days of receipt of notice from ZINWA or committing any breach of any of the
terms and conditions of this agreement, or failing , in the opinion of the Chief Executive
Officer, whose decision shall be final, to make beneficial use of such water, then and in
such event ZINWA shall have the right summarily to cancel this agreement, or to
discontinue the supply of water to the consumer for such period as it may think fit. Such
cancellation or discontinuance shall be without prejudice to the right of ZINWA to
recover from the consumer such sums as may be due by way of charges, damages or
otherwise and ZINWA shall not be responsible for any loss or damage direct or
consequential arising out of such termination or suspicion …”
Applicant also argued that to the extent that the water agreement seeks to override the
rights of residents to water under the law, that agreement is invalid as it would be “ultra vires the
statute.”
Applicant also relied on section 77 of the Constitution which states;
“77. Right to food and water
Every person has the right to –
(a) safe, clean and portable water; and
(b) sufficient food
and the state must take reasonable legislative and other measures within the
limits of the resources available to it to achieve the progressive realisaion of
this right.”
At the heart of this case is whether or not respondent can lawfully disconnect water
supplies to the applicant and consequently its rate payers. As indicated above, applicant’s case is
that,
1. Any partial or complete disconnection of raw water supply to it by the respondent
without a court order is unlawful.
2. The residents of the city have the basic right to water enunciated in section 77 of
the Constitution and water legislation. The respondent’s unlawful conduct
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threatens the health and well being of the residents and their economic
enterprises.
3. The right to water is a fundamental right. The respondent’s right to collect debts
against the applicant does not permit it to do so through unlawful means.
4. The Water Agreement is ultra vires the Water Act and the Constitution.
Applicant agrees that the following facts are common cause,
1. That the respondent provides water to the applicant from the Sebakwe Dam in terms
of the “Water Agreement”.
2. That respondent reduced the water supply for non-payment to 20%.
3. That before doing so respondent did not have the applicant’s consent nor did it seek a
court order,
4. That applicant owes respondent certain monies, the full extent of the debt is the
subject of litigation pending in this court. In principle, applicant admits that it is in
arrears with its payments for water supplied by respondent.
Finally, the applicant submitted that the court ought to be persuaded to grant a declaratur
because of the following factors;
1. The ZINWA Act and the Water Act do not empower the respondent to cut off the city
or reduce its water supply to 20% which respondent admits to have done.
2. There is no assurance that ZINWA will not refuse to supply water in full or not cut
the city’s supply in future.
3. A declaratur will bring finality on the question of the legality of respondent’s actions.
4. A declaratur will prevent a multiplicity of urgent applications for an interdict should
ZINWA cut off the city. The city is anxious to ensure that the rights of its residents
are not interrupted by a new dispute over the lawfulness of respondent’s actions.
On the other hand respondent’s argument can be summarised as follows;
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1. The respondent denies that it disconnected the applicant’s water supply but
admits that it reduced the supply.
2. The reduction of water supply was lawful in that it was done within the scope
of its water supply agreement with respondent.
3. The water agreement was created in accordance with s18 the respondent’s
enabling Act.
4. Clause 16 of the agreement allows respondent to vary the rate of flow of water
supply to the applicant. Hence the reduction of water supply was lawful.
5. The rational for reducing the water supply to applicant was to supply an
affordable quantity in view of the fact that applicant had not been paying for
supplies in breach of clause 4 of the parties’ agreement.
6. Applicant owes respondent US$1 576 693,24 in outstanding payments for
water supplied.
7. In accordance with the doctrine of sanctity of contracts the applicant is bound
by the terms of the contract. Respondent relied on Delta Operations (Pvt) Ltd
v Oragen Corporation (Pvt) Ltd SC-86-06.
8. Respondent has already instituted a separate litigation under HC 1259/14 to
recover the aforementioned sum.
9. In terms of s5(1)(h) of the respondent’s Act, it is sustained by supplying water
to its customers , at a charge. Reduction of supplies due to non-payment is
therefore not unconstitutional. Respondent cannot supply water free of
charge.
10. In any event disconnection of water supply to applicant would be lawful
within the ambit of clause 25 of the water supply agreement which allows
respondent to disconnect the consumers’ water supply in the event of any
default in payment of the supply charges.
11. Applicant’s case should be dismissed since it has failed to prove the alleged
disconnection and has failed to prove the unconstitutionality or unlawfulness
of respondent’s action to reduce its water supply.
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The above arguments can be distilled into two questions, namely;
(i) Whether the water agreement is unconstitutional?
(ii) Whether the water agreement is ultra vires the enabling Act?
Is the water agreement unconstitutional?
Section 77 of the Constitution of Zimbabwe encapsulates the right to food and water in
the following terms;
“Every person has the right to –
(a) safe, clean and portable water, and
(b) sufficient food;
and the State must take reasonable legislative and other measures within
the limits of the resources available to it, to achieve the progressive
realization of this right.”
This is a fundamental human right enshrined in Part 2 of the Declaration of Rights. If
infringed it becomes directly enforceable in terms of s85 of the Constitution. However, this right
being in the nature of a social right is not susceptible to unqualified application and enforcement.
In other words it is not absolute.
What then is the import of this right? This question was considered and answered by the
Supreme Court per PATEL JA/UCHENA AJ/ZIYAMBI AJA in City of Harare v Farai
Mushoriwa SC-54-18 The learned JA quoted with approval the pragmatic approach by the South
African Constitutional Court in Mazibuko & Ors v City of Johannesburg & Ors [2009] ZACC 28
[20110 (4) SAI]. The court was seized with the question of the meaning of s27 of the South
African Constitution which expressly provide for a right to have access to health care, food,
sufficient water and social security. As concerns water, section 27(1)(a) dictates that “everyone
has the right to have access to … sufficient water”. Section 27(2) enjoins the State to “take
reasonable legislative and other measures within its available resources to achieve the
progressive realization “of this right.
O’Reagan J, stated that;
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“… section 27(1) and (2) of the Constitution must be read together to delineate the scope
of the positive obligation to provide access to sufficient water imposed upon the State.
That obligation requires the State to take reasonable legislative and other measures
progressively to achieve the right of access to sufficient water within available resources.
It does not confer a right to claim “sufficient water” from the State immediately.
… The fact that the State must take steps progressively to realise the right implicitly
recognizes that the right of access to sufficient water cannot be achieved immediately.
That the Constitution should recognize this is not surprising.
At the time the Constitution was adopted millions of South Africans did not have access
to the basic necessities of life including water. The purpose of the constitutional
entrenchment of social and economic rights was thus to ensure that the State continue to
take reasonable legislative and other measures progressively to achieve the realization of
the rights to the basic necessities of life. It was not expected, nor could it have been, that
the State would be able to furnish citizens immediately with all the basic necessities of
life.” [at paras 57, 58 and 59]
“Moreover, what the right requires will vary over time and context. Fixing a quantified
content might, in a rigid and counter-productive manner, prevent an analysis of consent.
The concept of reasonableness places context at the centre of the inquiry and permits an
assessment of context to determine whether a government programme is indeed
reasonable.
Secondly, ordinarily it is institutionally inappropriate for a court to determine precisely
what the achievement of any particular social and economic right entails and what steps
government should take to ensure the progressive realization of the right. This is a
matter, in the first place, for the legislature and executive, the institutions of government
best placed to investigate social conditions in the light of available budgets and to
determine what targets are achievable in relation to social and economic rights. Indeed, it
is desirable as a matter of democratic accountability that they should do so for it is their
programs and promises that are subject to democratic popular choice.” [at para 60 and
61]
“The Constitution envisages that legislative and other measures will be the primary
instrument for the achievement of social and economic rights. Thus it places a positive
obligation upon the State to respond to the basic social and economic needs of the people
adopting reasonable legislature and other measures. By adopting such measures, the
rights set out in the Constitution acquire content, and that content is subject to the
constitutional standard of reasonableness.
Thus the positive obligation imposed upon government by the social and economic rights
in our Constitution will be enforced by courts in at least the following ways.
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If government takes no steps to realise the rights, the courts will require government to
take steps. If government’s adopted measures are unreasonable the courts will similarly
require that they be reviewed so as to meet the constitutional standard of reasonableness
… Finally, the obligation of progressive realization imposes a duty upon government
continually to review its policies to ensure that the achievement of the right is
progressively reached.” [at paras 66 and 57]
“What is clear from the discussion above is that the city is not under a constitutional
obligation to provide any particular amount of free water to citizens per month. It is
under a duty to take reasonable measures progressively to realise the achievement of the
right.” [at para 85]
“I have thus concluded that neither the FREE BASIC WATER policy nor the
introduction of pre-paid water meters constitutes a breach of section 27 of the
Constitution.” [at para 169]
The Constitutional Court found that the city had authority to install pre-paid meters and
that the disconnection of water supply, once the free basic water limit had been exhausted, did
not constitute an unlawful discontinuation of water supply. It was also held that such conduct
did not constitute a breach of section 27 of the Constitution.
In concluding that the disconnection of water for non-payment did not constitute a
violation of section 77 of the Constitution, the learned Judge of Appeal reasoned as follows:
“My reading of s77 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. It might also arise where as appears to have
been recently admitted by the appellant itself, having afforded an adequate water supply
to most inhabitants, it is then discovered that such supply is in fact contaminated and
therefore only portable at great risk. In contrast, it is difficult to envisage how the broad
import of s77 might be invoked in the case of a consumer, who has full or adequate
access to water supply, but is deprived thereof by being disconnected for having failed to
pay for water consumed and after having received due notice and warning to settle his
account.
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… 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 for water
consumed in any specific instance constitutes an infringement of the constitutional right
to water. 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. This approach accords squarely with the dictates of s86(1) of
the Constitution to wit, that fundamental rights and freedoms must be exercised
reasonably and with due regard for the rights and freedoms of others.” (my emphasis)
In casu, the impugned water agreement is similar in content to the “1913 Bye Laws”
enacted in terms of section 198(3) of the Urban Councils Act (Chapter 29:13). It had been
argued that the Bye laws were ultra vires para 69(2)(e) of the Third Schedule to the Urban
Councils Act. The learned Judge of Appeal in the Mushoriwa case supra examined the
provisions of the standard form contract relating to (i) computation of the amount of water
supplied to any consumer ; (ii) the possible disputation of meter readings and charges due, (iii)
the giving of notice to a consumer and (iv) the reasonableness of the contract, and came to the
following conclusion;
“… the power conferred upon the Council to disconnect water supply upon 24 hours
written notice may only be involved as the final resort. Furthermore the opinion of the
Council as to whether the consumer has failed to pay any sum due is not purely
subjective. It is qualified and conditioned by the prior delivery of an account and the
possibility of that account being challenged by the consumer and then rectified if the
meter in question is found to be faulty or defective. In short, the Bye-Laws provide for a
dispute resolution mechanism that precedes the possible penalty of disconnection. Thus,
the process, taken as a whole, is entirely consistent with the requirements of para 69 of
the Third Schedule to the Act insofar as that provision delineates the parameters for
framing Bye-Laws regulating the supply and disconnection of water … I take the view
that the 1913 Bye-Laws regarded as a whole, are not only compliant with and intra vires
the enabling provisions of the Urban Councils Act but also perfectly concordant with the
over arching notions of reasonableness.”
In the present matter, the major line of attack of the water agreement is that it permits the
respondent to disconnect or reduce the water supply for non-payment. This argument has no
merit in that respondent is permitted in terms of s18 of its Act to enter into agreements with its
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clients. It is allowed to supply water for a charge and on a cost effective basis. More
importantly it is authorized to promote an equitable, efficient and sustainable allocation and
distribution of water resources. In my view the clauses of the water agreement cannot be found
to be objectively grossly unreasonable in the sense that they are manifestly unequal, unjust,
arbitrary or oppressive. By contrast, it is the applicant’s argument that is thoroughly
unreasonable and unjust in that in its stark naked form, demands to be supplied with free water at
the expense of every other consumer of water in that catchment area.
I find therefore that the water agreement is not ultra vires the ZINWA Act. I find also
that for reasons given above this is not a proper case for the exercise of my discretion in terms of
section 14 of the High Court Act.
Accordingly, the application is dismissed with costs.
Mutatu & Partners, c/o Dube-Tachiona & Tsvangirai, applicant’s legal practitioners
Muza & Nyapadi c/o Calderwood Hendrie Bryce & Partners respondent’s legal practitioners