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Mashudu Netsianda, Senior Court Reporter
THE High Court yesterday dismissed an application by Kwekwe City Council challenging water cuts by the Zimbabwe National Water Authority (Zinwa) over a $1,5 million debt without a court order.
Kwekwe City Council, through its lawyers Mutatu and Partners, filed a court application for declaratur at the Bulawayo High Court under case number HC1349/17, two years ago citing Zinwa as the respondent.
The council sought an order directing Zinwa to restore full water supply to the town forthwith, arguing that the water cuts were unlawful.
The local authority also wanted Zinwa to be interdicted from interfering with water supplies.
Justice Maxwell Takuva ruled that Kwekwe City Council’s argument lacked merit. He said Zinwa is permitted in terms of section 18 of the Zinwa Act to enter into agreements with its clients and supply water and charge on a cost-effective basis.
“In the present matter, the major line of attack of the water agreement is that it permits the respondent to disconnect or reduce the supply of water for non-payment. Zinwa is allowed to supply water for a charge and on a cost-effective basis, and more importantly, it is authorised to promote an equitable, efficient and sustainable allocation and distribution of water resources,” said Justice Takuva.
“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.”
Justice Takuva said it was unreasonable and unjust for Kwekwe City Council’s demands to be supplied with free water at the expense of every other consumer in its catchment area.
“I find therefore that the water agreement is not ultra vires the Zinwa Act. I also find 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,” ruled the judge.
In his founding affidavit, Kwekwe City Council town clerk, Mr Emmanuel Ngwena Musara said the partial or complete disconnection of water supply was outside the provisions of the Zinwa Act and the country’s constitution, describing it as “outrageous and defying logic.”
“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 Zinwa Act and the constitution and is therefore unlawful and cannot be enforced in any court of law,” he said.
He said Zinwa has not been involved in carrying out elementary maintenance work at Sebakwe Dam for a long time.
“As a result of that it is now very expensive to treat water for the benefit of residents and this eventually affects the capacity of Kwekwe City Council to pay Zinwa for the supply of raw water,” said the town clerk.
Mr Musara said Kwekwe City Council, which is a tier of the Government and Zinwa, as an agent of the Government, should work together in the provision of water to citizens.
He argued that it was illegal for Zinwa to disconnect water without a court order.
Mr Musara said the disconnection was arbitrarily done without a court order and consultations with Kwekwe City Council, arguing that Zinwa’s action was a violation of the country’s constitution which compromises service delivery.
Zinwa through its lawyers, argued that Kwekwe City Council’s failure to pay the debt amounting to US$1 576 693,24 was in breach of clause 4 of their agreement. The water utility however said it only reduced the supplies within the scope of its agreement with the council.
“By accumulating huge arrears, the applicant has according to its own admission breached clause 4 of the agreement. What threatens the realisation of the right to clean water is Kwekwe City Council’s failure to pay for the water charge levied by the applicant,” argued Zinwa lawyers. — @mashnets
Sidumisile Mabena