Fidelis Munyoro and Farai Kuvirimirwa
Harare City Council risks being charged with contempt of court for disconnecting water to defaulting residents despite last week’s High Court decision declaring the practice unconstitutional and compelling all municipalities to seek court orders before cutting supplies.
Council staff were yesterday disconnecting water to defaulters in Tynwald, Highfield, Glen Norah, Budiriro and Westgate.
Legal experts warned that council officials could soon be cited for contempt of court.
Justice Chinembiri Bhunu’s landmark ruling described Section 8 of the Water By-law Statutory Instrument 164 of 1913, which empowers local authorities to arbitrarily cut water supplies, as unconstitutional.
This was after lawyer Mr Farai Mushoriwa contested disconnection of water to his Harare home.
The section in question 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 shall have failed to pay any sum, which in the opinion of the council, is due under these conditions or the water by-laws.”
Justice Bhunu said the by-law breached Section 77 of the Constitution of Zimbabwe, which classifies clean water and food as basic rights. Section 44 of the same Constitution imposes a duty on State and Government institutions, like councils, to respect fundamental human rights and freedoms.
Prominent lawyer Mr Terence Hussein said, “Council must obey court orders and if they choose not to obey a court order those who are ultimately responsible for managing council such as mayors and councilors will find out from the discomfort of a jail cell that it is not a very wise thing to do.”
Advocate Thembinkosi Magwaliba said the city was breaking the law.
“Residents have a right to clean water in terms of the Constitution. They cannot be deprived of water without the due process of the law. There is a possibility that council may be cited for contempt of court if they continue with disconnections.”
Another lawyer who spoke on condition of anonymity said the council should be guided by the judgment in its conduct going forward.
“The court has spoken once and the council must hear it twice over.”
But council lawyer Mr Charles Kwaramba said: “The essence of the order given by the court was interdicting council from disconnecting Mushoriwa’s water without a court order and the judgment was specific to Mr Mushoriwa. You must note that the court did not strike down the regulation in terms of which council have been acting all this while.”
Ambuya Mary Maponga of Old Highfield told The Herald yesterday that she had asked her grandchildren to get water from an industrial sites borehole because council cut her off this week.
“I was surprised to see council workmen shutting my water when I can go for days without water. The figures they are charging do not change despite the water shortages.
“We heard they were told to stop shutting the water but we tried to ask the people who came, and they said it was an order from their offices and not the courts.
“We are now using a borehole in the industrial areas where it is risky for my grandchildren to cross the busy Willowvale Road,” she said.
Richard Munetsi said Government should intervene to assist the residents who have resorted to using contaminated water for domestic use.
Mrs Mabel Magura of Westgate, who has a borehole, said her water was disconnected over a US$400 debt.
“There is no water most of the times and we drilled a borehole to help ourselves. The bills unjustifiably increase and we paid the fixed charge but there was no difference.
“They disconnected our water and threatened to disconnect the pipes from the main line if we were to connect it,” she said.
Mrs Felistas Mukangiro of Budiriro 1 said they had gone three months without water but received bills showing monthly consumption.
“Our neighbours get water but we get nothing and we dug a well which is assisting us at the moment,” she said.
Harare Mayor Councillor Bernard Manyenyeni said residents should pay for services.
“Residents should pay for the water they use and that is when they can be assured of it. We are there to observe the law and we will try to comply but we need money for us to avail more water.
“I am not aware that there have been subsequent disconnections after the (court) ruling. I can get further advice about the issue on Monday after getting full understanding of the ruling and the actual position from the management,” said Cllr Manyenyeni.
Local authorities countrywide have been using water disconnections to force residents to pay overdue bills.