City cries foul over High Court decision
The Harare City Council and residents have been bickering over water disconnections as punishment for unpaid debts. The issue has been in and out of court with the High Court on countless occasions clearly stating that it is illegal for Harare City Council to disconnect water supplies to defaulting businesses and residents without a court order.
IN THE latest ruling this week, the High Court again upheld previous rulings which clearly spelt out the illegality of Harare City Council’s continued disconnection of water supplies to defaulting businesses and residents in the absence of a court order.
In the latest ruling, the High Court stated that water is a basic human right guaranteed in the Zimbabwean constitution making disconnections unconstitutional.
Yet, the City of Harare is clearly swimming against the tide and determined to recover what they are owed vowing to appeal against the latest decision at a higher court, the Supreme Court. With water and sanitation issues central to community health and development, council’s latest tactic is worrying. Legal experts yesterday warned that council officials could soon be cited for contempt of court, should they continue with water disconnections?
Mr Sharon Hofisi, who is a lecturer of Administrative Law at the University of Zimbabwe said he appreciates the role played by the High Court in protecting basic human rights of Harare residents.
“The High Court played its role of protecting, respecting, promoting and fulfilling the declaration of rights since water is a basic right which is guaranteed in the Constitution,” he said.
He said Section 8 of the Water By-law Statutory Instrument, which empowers local authorities to arbitrarily cut water supplies, is unconstitutional.
The section in question 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.”
Mr Hofisi said the by-law breached Section 77 of the Constitution of Zimbabwe, which classifies clean water and food as basic rights.
“There is also Section 44 of the same Constitution that imposes a duty on State and Government institutions, like councils, to respect fundamental human rights and freedoms,” he explained.
Mr Hofisi said that council was mandated to take court orders and failure to do so would result to punishment.
“City of Harare must obey court orders and if they choose to defy, those who are ultimately responsible for managing council such as mayors and councillors will find out from the discomfort of a jail cell that it is not a very wise thing to do.”
Mr Hofisi said the City of Harare was breaking the law.
“Residents have a right to clean water in terms of the Constitution. They cannot be deprived of water without the due process of the law. There is a possibility that council may be cited for contempt of court if they continue with disconnections,” he warned.
The city has been urged to respect the High Court order until the case is heard at the Supreme Court.
Another lawyer who spoke on condition of anonymity said the City of Harare should be guided by the judgment in its conduct going forward.
“The court has spoken once and council must listen.
“If council persists to act unilaterally, the residents can go to court and seek a declaration order because the court has no right to breach human rights,” he said.
There seems to be confusion within the council`s approach as there have been too many inconsistencies.
Councillors are on record urging residents to disregard Wellcash Debt collectors who were contracted by the Harare City Council to recover money owed by residents.
Mabvuku Ward 19 Councillor, Munyaradzi Kufahakutizwi said Wellcash Debt Collectors’ contract had been terminated hence they could not continue collecting money on behalf of the Harare City Council.
“There is a full council resolution to the effect that Wellcash Debt Collectors must be stopped, so residents must approach the district offices if they need to make payments,” he said.
Residents should however not ignore paying their bills as this could cripple the council`s operations.
“I would also like to urge those who owe the council huge sums of money to go to our district office and make payment plans,” he added.
At the same meeting, Mabvuku District Officer, Charles Taonezvi told residents that they should not hesitate to approach his office in the event that they encounter challenges with Wellcash Debt Collectors’ employees.
His sentiments were echoed by the Area Controller for Harare Northern District, Linos Mutero.
“Wellcash were contracted by the Harare City Council and it is the council that has the final say on how they operate.
“If you have any challenges with them, we urge you to approach your district office and seek redress,” said Mutero.
Contentious as it is, the water cut debacle has been in and out of courts over the years. Last year, the city got a reprieve after a High Court judge gave it the green light to disconnect water for defaulting residents without a court order. The only condition attached to the ruling was that it follows provisions of the Harare (Water) By-laws Section 164/ 1913, which require that council gives 24 hours’ notice to affected parties before disconnections.
The High Court, however, said where the bill was genuinely disputed, there should be recourse at the courts before council disconnected the water supply to the consumer.
The court made the ruling in a case in which Harare lawyer Mr Tinofara Hove took Harare City Council to the High Court seeking to stop the city from disconnecting his water supplies without a court order after accruing an $18 600 water bill.
In 2014, then High Court Judge Justice Chinembiri Bhunu made a similar ruling saying Section 8 of the Water By-Law, which empowers local authorities to cut water supplies without a court order, was in breach of Sections 77 and 44 of the Constitution.
The two sections guarantee the right to safe and clean water and compel Government to respect fundamental human rights.
Local authorities countrywide have been using water disconnections to force residents to pay overdue bills.
Neighbouring countries like South Africa, Mozambique and Botswana have payment plans to cater for those who find it difficult to settle their water bills.
They do not cut off water since it is a basic right which is explicitly recognised by Article 30 of the United Nations Universal Declaration of Human Rights.
On 28 July 2010, through Resolution 64/ 292 , the United Nations General Assembly explicitly recognized 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 safe, clean, accessible and affordable drinking water and sanitation for all.
This is also clearly in support of Florence Nightingale’s observations which suggested that disease was more prevalent in poor environments and that health could be promoted by providing adequate ventilation, pure water, quiet, warmth, light and cleanliness.
Whether the Supreme Court will uphold the High Court ruling remains to be seen, but for now the law has shielded Harare residents from water cuts giving them much needed breathing space in the current tough economy. ◆ Feedback: talentgore38@gmail.com