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WE hail last week’s landmark judgment by the High Court in Harare stopping municipalities countrywide from disconnecting water supplies for defaulting residents without seeking recourse to the courts of law because it guarantees citizens access to safe drinking water — a right enshrined in the constitution. Since the dollarisation of the economy, councils’ billing systems have not been regularised resulting in estimates being used to bill consumers.
Even after the expunging of outstanding bills as directed by government, residents have been receiving inflated bills, raising questions about the authenticity and credibility of councils’ billing systems. While we acknowledge that councils need ratepayers to pay for services rendered and that there are costs associated with providing safe drinking water to residents, a balance must be struck between the right to safe water and local authorities’ balance sheets.
On 28 July 2010, through Resolution 64/292, the United Nations General Assembly explicitly recognised the human right to water and sanitation and acknowledged that clean drinking water and sanitation are essential to the realisation of all human rights. The Resolution calls upon states and international organisations to provide financial resources, help capacity-building and technology transfer to help countries, in particular developing countries, that the human right to water is indispensable for leading a life in human dignity.
It is a prerequisite for the realisation of other human rights and part of the UN Millennium Development Goals. The right to water is the right of everyone to sufficient, safe, acceptable and physically accessible and affordable water. The United Nations Development Programme (UNDP) suggests that water costs should not exceed three percent of household income for personal and domestic uses.
Justice Chinembiri Bhunu, in a landmark judgment availed on Wednesday last week, described as illegal Section 8 of the Water By-law Statutory Instrument 164 of 1913 that 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 blessings of the courts was tantamount to self-help by the municipality and a disregard of the Constitution of Zimbabwe.
Prior to the judgment, legal experts had been speaking against councils’ strategy of compelling consumers to pay saying it was illegal but Justice Bhunu spelt it out in a case in which Harare lawyer, Farai Mushoriwa, was contesting disconnection of water at his flat in Harare. Mushoriwa of Mawere and Sibanda law firm in Harare had water disconnected from his flat at Number 12 Northcliff Flats over a debt of $1,600. He denies owing council anything but council rushed to disconnect water at the flat.
Advocate Thabani Mpofu represented Mushoriwa in the case while 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. Local authorities countrywide have been using water disconnections to force residents to pay up overdue bills, resulting in people living in life threatening conditions.
We hope this judgment will protect consumers from councils out to fleece them while failing to provide service delivery. In the same vein, this judgment should not be used by unscrupulous residents to duck paying for water or other services provided by councils. Councils need their ratepayers to pay for services rendered so that they can continue providing a satisfactory service.
Online Reporter