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Water disconnections unconstitutional: Court

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Water disconnections unconstitutional: Court
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The High Court has upheld the people’s right to potable water by banning all municipalities from disconnecting supplies to their residents. In this file picture, residents of Rugare, Harare, fetch water from an unprotected well

Daniel Nemukuyu Senior Reporter
THE High Court has stopped all municipalities countrywide from disconnecting water supplies for defaulting residents without seeking recourse to the courts of law.Justice Chinembiri Bhunu — in a landmark judgment availed on Wednesday — described as illegal Section 8 of the Water By-law Statutory Instrument 164 of 1913 which empowers local authorities to cut off water supplies arbitrarily in the absence of a court order.

He said the by-law was an illegal instrument drafted by municipal authorities contrary to 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 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 tendency of disconnecting water supplies without the blessing of the courts was tantamount to self-help by municipalities and a disregard of the Constitution of Zimbabwe.

Prior to the judgment, legal experts had been speaking against council’s strategy of compelling consumers to pay saying it was illegal but Justice Bhunu spelt it out in a case in which Harare lawyer Mr Farai Mushoriwa was contesting disconnection of water at his flat in Harare.

Mr Mushoriwa of Mawere and Sibanda law firm in Harare had water disconnected from his flat at No. 12 Northcliffe over a debt of US$1 600.

He denies owing council anything, but council rushed to disconnect water at the flat.

Advocate Thabani Mpofu represented Mr Mushoriwa in the case while Mr Charles Kwaramba of Mbidzo Muchadehama and Makoni acted for Harare City Council.

Justice Bhunu said Section 8 of the Water By-Laws (Statutory Instrument 164/1913) that is being relied upon by the municipalities in disconnecting water without seeking recourse from the courts, was in breach of Section 77 of the Constitution of Zimbabwe, which classifies clean water and food as basic rights.

“The respondent has sought to arrogate to itself the right to determine when the amount claimed is due by simply laying a claim to payment without proof by due process or recourse to the courts of law.

“That it (council) seeks to do is to oust the jurisdiction of the courts so that it can operate as a loose cannon and a law unto itself.
“It seeks to extort money from the applicant (consumers) without the bother of establishing its claim through recognised judicial process.

“The disconnection of water supplies without recourse to the courts of law is meant to arm-twist and beat the applicant (consumer) into submission without bother of proving its claim in a court of law,” said Justice Bhunu.

The judge said Section 77 of the Constitution guarantees the right to safe and clean water while Section 44 of the same Constitution imposes a duty on the State and Government institutions like council to respect the fundamental human rights and freedoms.

“The respondent (council) being a public body, and institution of local government, it follows that it cannot deny a citizen water without just cause.

“It is trite that it is the function of the judiciary to interpret and enforce the law when a citizen complains that his human rights have been violated,” ruled Justice Bhunu.

Justice Bhunu expressed displeasure over Harare City Council’s conduct to go ahead and disconnect water supplies despite an earlier consent order by the parties for the restoration of water to Mr Mushoriwa pending determination of the application.

“The respondent’s conduct in terminating water supply in the face of a binding court order was contemptuous of the court and unbecoming of the respondent and its officials.

“The court expresses its displeasure by awarding costs at a punitive scale,” ruled the judge.

Local authorities countrywide have been using water disconnections to force residents to pay up overdue bills, resulting in people living in life threatening conditions.

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