BCC wins water cuts case

Mashudu Netsianda Senior Court Reporter
THE Bulawayo High Court has dismissed an urgent chamber application by three pensioners who were suing the Bulawayo City Council for arbitrary water disconnections at their residences.

The three applicants, Peter Frank Sibanda, 66, Paul Phiri, 64, and Douglas Sibanda, 62, through their lawyers TJ Mabhikwa and Partners, had lodged an urgent court application, arguing that they were being deprived of their right to access clean water because they are pensioners.

According to court papers, Bulawayo City Council was cited as the respondent.

In dismissing the application, Justice Maxwell Takuva said the three pensioners had no prima facie right to water because of failure to settle their water bills.

“Where there has been non-payment of the amounts shown on the bills, the applicants can’t be said to have a prima facie right to water. It’s the court’s view that the harm isn’t irreparable as there’s an alternative remedy in that the respondent has a pro-poor policy that applicants can utilise. The application be and is hereby dismissed,” ruled Justice Takuva.

The applicants sought a declaratory order that affirmed their right to safe, clean and portable water.

According to his founding affidavit, Peter of Mpopoma said he has been a Bulawayo resident since 1945 and has an outstanding water and rates bill amounting to $191,63.

Peter, who retired from National Railways of Zimbabwe (NRZ) in 2008, said on February 11, the council unilaterally and without prior notice cut water supplies to his premises.

“The unilateral and arbitrary disconnection of water by the respondent without a court order is unlawful and constitutes an unreasonable infringement on our right to safe, clean and portable water as enshrined in Section 77(a) of the Constitution of Zimbabwe (Amendment No 20) Act 2013,” Peter argued.

“The council levies charges for the supply of water to residents. To date, I’ve an outstanding water and rates bill amounting to $191, 63. By virtue of being a pensioner with a limited flow of finances, I’m struggling to pay this bill,” he said.

Peter argued that even if he owed council, it was not an excuse for them to cut water supplies.

“Respondent shouldn’t resort to self-help by trampling on my constitutionally guaranteed right to safe, clean and portable water. I’m being penalised for being a pensioner, for being of old age, for being out of active employment on account of my advanced age, for being no longer in a position to fend for myself,” he said.

Both Phiri and Douglas raised similar arguments. Bulawayo City Council last month deployed its officials to disconnect water supplies to residents who owed more than $200.

In its opposing papers, Bulawayo City Council through its lawyers Coghlan and Welsh Legal Practitioners, argued that the disconnections were conducted in line with provisions of the Urban Councils Act.

“Section 69 (2)(e) of the Urban Councils Act under the Third Schedule states that the respondent can make by-laws for disconnecting water supply on account of failure by any consumer to pay charges which are due. It’s therefore clear that council is mandated by the law to cut off water supplies if the consumer is in arrears,” said the lawyers.

The city council’s acting town clerk, Sikhangele Zhou in her opposing affidavit said:

“What’s clear is that the applicants don’t deny that they’ve been receiving bills from the council in respect of water supplied. Each bill that is sent by council is attached with a notice about the legal action in the event that the account is overdue. There’s also a notice about disconnections on the bill.”

“If an account is overdue by 60 days or more, legal action may be taken without further notice. Ample notice was given to the applicants as each and every bill that was sent to them had an endorsement advising applicants that water would be disconnected if they didn’t pay the outstanding bills,” said the acting town clerk.

Zhou said Bulawayo City Council has a pro-poor policy in place to cater for the vulnerable groups within the city.

“The facility is extended to ratepayers without any means to sustain themselves. They include those over the age of 70, child headed households, terminally ill ratepayers and those who are physically challenged,” she said.