High Court dismisses Kwekwe Zinwa water cuts challenge

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 costeffective 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 A WOMAN from Dete fractured an arm after two men who had earlier assaulted her handcuffed son accusing him of stealing their chickens attacked her with an axe handle and stones.

Mrs Lizzy Ncube aged 62 and her son Mr Fanuel Ncube (22), who sustained a cut on the forehead, swollen hands and bruises on the face, were referred to St Patrick’s Hospital for treatment following the attack by Strydom Mudenda (32) and Itai Chiwoko (38), both from Lupote Village under Chief Nelukoba.

Mudenda, who is a security guard based in South Africa, used a pair of handcuffs to assault Mr Ncube before cuffing him.

Mudenda and Chiwoko pleaded guilty to two counts of assault each when they appeared before Hwange magistrate Mr Gift Dube.

The magistrate slapped each of them with 24 months in jail before suspending nine months on condition of good behaviour.

Each will serve an 15 months in jail.

Prosecuting, Mr Trymore Chitumbu said the crimes were committed on August 7. effective

“The complainant Fanuel Ncube disembarked from a lift at Lupote Bus Stop when Mudenda approached holding handcuffs. Mudenda hit the complainant once on the forehead with the handcuffs accusing him of stealing chickens from his fowl run,” said the prosecutor.

The court was told that Mudenda handcuffed Mr Ncube before Chiwoko and other villagers joined and started assaulting him with knobkerries and stones while also slapping and punching him.

Mudenda hit Mr Ncube several times with an axe handle all over the body leaving a deep cut on the forehead, swollen hands and bruises on the face.

Mr Ncube’s mother, who was watering her garden near Lupote Primary School, rushed to the scene when she heard villagers were assaulting her son.

At the scene, Mudenda and Chiwoko charged at her and assaulted her for protecting her son.

Mrs Ncube managed to escape and sought refuge in a blair toilet.

Mudenda led Mr Ncube to Dete Police Station intending to open a case of theft against him.

Police arrested Mudenda and Chiwoko and referred Mr Ncube and his mother to St Patrick’s Hospital. — @ncubeleon