REPORTABLE        (44)

CITY     OF     HARARE

v

FARAI     MUSHORIWA

SUPREME COURT OF ZIMBABWE

PATEL JA, UCHENA JA & ZIYAMBI AJA

HARARE, 25 SEPTEMBER 2017 & 20 SEPTEMBER 2018

F. Girach, for the appellant

T. Mpofu, for the respondent

                        PATEL JA:   This is an appeal against the judgment of the High Court granting a provisional order in favour of the respondent pursuant to an urgent chamber application filed by the latter.     The relevant factual background is as follows.

                        In May 2013, the appellant sent to the respondent a bill of $1,700 for water services rendered. The respondent disputed the bill claiming that it related to a bulk meter not connected to his leased premises. On 31 May 2013, the appellant disconnected the respondent’s water supply. The respondent then filed an urgent chamber application to restore his water supply pending the resolution of the dispute. At the time when this appeal was heard, the respondent had vacated the premises in question.

High Court Judgment

                        The High Court found that the relevant legislation governing water supplies divested the appellant of any unfettered discretion to disconnect water supplies. In any case, where the appellant sought to do so for any alleged failure to pay, it could only disconnect upon proof that the consumer in question had failed to pay the charges due. Moreover, the appellant could not arrogate to itself the right to determine when payment is due without the requisite proof secured by due process or recourse to a court of law. The court opined that the right to potable water is enshrined in the Constitution and that the appellant, being a public body, cannot deny water to any citizen without just cause. Furthermore, the relevant by-law relied upon by the appellant was not only unconstitutional but also ultra vires its parent legislation because it conferred sole jurisdiction upon the appellant to determine any disputed bill without recourse to the courts.