Freshwater use

Forbes & Thompson (Bulawayo) (Pvt) Limited v ZINWA & Another (HB 147-18, HC 1148-16) [2017] ZWBHC 147 (08 June 2017);

FORBES & THOMPSON (BULAWAYO) (PVT) LTD

 

Versus

 

THE ZIMBABWE NATIONAL WATER AUTHORITY

 

And

 

TIMOTHY KADYAMUSUMA

 

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 2 & 8 JUNE 2017

 

Opposed Application

 

W. Ncube for applicant

Dondo for the respondents

The applicant in this High Court case moved the court to issue an interdict order against the first and second respondent. The applicant needed the court to compel the respondents to restore the supply of water that they had disconnected to the applicantÕs mine.  The interim relief had been issued in a previous application, but the applicant additionally sought an order interdicting the respondents from terminating the water supply. 

The first and second respondent disconnected the water supply that fed the applicants mine and the neighbouring community. The applicant argument was that the respondents infringed its right to water under s77 of the Constitution of Zimbabwe. The respondents argued that they were entitled to disconnect the water supply as the applicant failed to pay the water bills, thereby ending their contract.

Thus, the issue for determination was whether the applicant satisfied the requirement for an interdict to be issued.

The court held that in the issue of spoliation, it is established in law that for a party to succeed it must show that the party was in peaceful and undisturbed possession. The court was satisfied that the applicant was constitutionally entitled to water supply, and that interference with this right without a court order was unlawful.

As a result, the interdict was allowed pending the main trial.

Hippo Valley Estates Limited & Another v Minister of Environment, Water & Climate (HH 235-18, HC 7770/16) [2018] ZWHHC 235 (03 May 2018);

HIPPO VALLEY ESTATES LIMITED

and

TRIANGLE LIMITED

versus

MINISTER OF ENVIRONMENT, WATER AND CLIMATE

 

 

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 20 February, 2018 and 3 May, 2018

 

 

Opposed application

 

 

T Magwaliba, for the applicants

E Mukucha, for the respondent

 

 

The court considered an application to set aside the National Water Authority Regulations and tariffs on the ground that they were ultra vires and violated the applicants’ rights. 

The applicants’ business operations involved sugar-cane growing and sugar processing. They concluded two agreements with the Zimbabwe National Water Authority (ZINWA), which related to the supply of water. It was a term of the agreement that the parties would, together, review charges for raw water, and should they fail to agree, the respondent would fix the prices.  Subsequently, ZINWA addressed a letter advising the applicants of their intention to review the charges. The respondent unilaterally increased the tariffs and failed to notify the applicants. The respondent argued that in terms of the ZINWA Act, she had the authority to impose tariffs for water charges and that the regulations did not violate the applicants’ rights. 

The court considered whether the respondent had acted lawfully in imposing the water tariffs. It found that the government reviewed the water charges, and not ZINWA which was lawfully established to review the tariffs in as far as the applicant was concerned.  

The court found that the respondent could not unilaterally increase water tariffs, unless ZINWA had made application to it to justify the increase. In this case, the respondent failed to notify the applicants, nor did she give them an opportunity to respond. The court concluded that the respondent acted ultra vires by increasing the tariffs and her actions were unlawful. Accordingly, the application was upheld

Forbes & Thompson (Byo) (Pvt) Ltd. v ZINWA & Another (HB 154-16 HC 1148-16) [2016] ZWBHC 154 (16 June 2016);

1

 

HB 154-16

HC 1148-16

 

FORBES & THOMPSON (BULAWAYO) (PVT) LTD

versus

THE ZIMBABWE NATIONAL WATER AUTHORITY

and

TIMOTHY KADYAMUSUMA

 

 

HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 11 MAY AND 16 JUNE 2016

 

 

Urgent Chamber Application

 

 

W. Ncube for the applicant

Adv. L. Nkomo for the respondent

 

 

The applicant in this High Court case was seeking interim orders that (1) the first and second respondent be ordered to restore the supply of water from Blanket Dam in Gwanda to the applicant’s mine; (2) the first and the second respondent be interdicted from interfering with the applicant’s possession of his water supply infrastructure without obtaining a court order to that effect. 

The facts were that the first and second respondent disconnected the water supply that fed the applicants mine and the neighbouring community. The applicants argued that the respondents infringed its right to water under s77 of the Constitution of Zimbabwe. The respondents, on the other side, argued that the matter was not urgent, and they were entitled to disconnect the water supply as the applicant failed to pay the water bills, thereby ending the contract between them.

Thus, the main issue for determination was whether the applicant had satisfied the requirement for an interim order to be issued; 

On the first issue, the Court held that the applicant had satisfied the requirements for an interim order which are, (i) prima facie right; (ii) reasonable apprehension of irreparable injury; (iii) no alternative relief available; (iv) and the balance of convenience favouring the granting of the interdict. 

As a result, the interim order was allowed pending the main trial and the hearing of the interdict.

Hove v Harare City (HH 205/16 HC 1728/15) [2016] ZWHHC 205 (23 March 2016);

1

HH 205/16

HC 1728/15

 

TINOFARA KUDAKWASHE HOVE

versus

CITY OF HARARE

 

 

 

HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE, 19 January 2016 and 23 March 2016

 

 

 

Opposed Application

 

 

 

E Matsanura, for the applicant

C Kwaramba, for the respondent

 

 

This was an application to interdict the respondent from disconnecting water supplies from the applicant’s property without a court order and from charging commercial rates for the use of water from the said property.

The applicant submitted that the respondent was infringing on their right to water as provided in s 77(a) of the constitution. In interpreting the right to water, the court found that the right empowers local authorities to levy rates to raise revenue for service provision and does not prohibit disconnections of water services for non-payment. Additionally, the court held that the right to water contains the protection against arbitrary and illegal disconnections. Consequently, when a bill is genuinely disputed there should be recourse to the court before disconnection as per s 69 (3) of the constitution and the holding in Mushoriwa v City of Harare HH 195/14.

The court held that the applicant had proved his right to water but failed to prove the genuineness of his claim, since he did not provide proof letters of complaint disputing the bills. This also had a negative bearing on the grant of the interdict order.

The court also found that the applicant converted domestic premises for use as commercial premises and was not entitled to be charged domestic rates. 

The court also noted that the applicant failed to give adequate information which would show that the respondent did not follow the correct procedure in zoning and rating it.

Accordingly, the application was dismissed with costs.

Hopcik Investments (Pvt) Ltd. v Minister, Environment, Water & Climate & Another (HH 137-16, HC 1796/14) [2016] ZWHHC 137 (17 February 2016);

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right to water (s 77) – legislative measures to ensure supply of potable water – duty of urban council to ensure water distributed fairly

Human rights – right to water – legislative measures to ensure supply of potable water – duty of urban council to ensure water distributed fairly

The applicant sought an order compelling the respondents to supply water to its premises which they had failed to supply for about three years.  The applicant contended that the respondents were not doing enough to ensure adequate supply of water to residents. 

The respondents averred that the situation was out of their hands as they faced various obstacles for effective service delivery and further that when s 183 of the Urban Councils Act (the empowering provision) was enacted, the legislature was mindful of the fact that the respondents may not be able to provide water to residents because of the use of the word “may’’ in the section and that their failure to provide water was justifiable.

The court had to decide on the interpretation of the empowering provision and whether the reasons for failure were justifiable. The court held that the word “may” in s 183 was recognised that there were instances when a council may fail to provide and supply adequate water. The legislature was alive to the possibility that the institution delegated to supply the water, may at some stage, have been unable to comply with the requirement.

However, if such failure was justifiable, the court held that the explanation given for the respondent’s failure to supply water was simply lack of resources. It did not appear that any effort was being made to ensure that the applicant got adequate supplies of water and as such fell short of the justifiable threshold. The application was successful. 

Jackson v Zimbabwe National Water Authority (HC 927/11) [2011] ZWHHC 240 (23 October 2011);

TIMOTHY CURTIS JACKSON

versus

ZIMBABWE NATIONAL WATER AUTHORITY

 

 

HIGH COURT OF ZIMBABWE

MAKONESE J

HARARE, 24 October 2011

 

 

D. Mwonzora, for plaintiff

J. Dondo,for defendant

 

 

This was an application for absolution from the instance by the defendant at the close of the plaintiffÕs case on grounds that there was no need to rebut the plaintiffÕs claims since there was a lack of sufficient evidence.
The plaintiff had instituted a claim for damages following the defendantÕs failure to avail water for irrigation purposes as was previously agreed.
The court determined whether the plaintiff had placed before the court sufficient evidence to warrant the defendant to be placed on its defence.
The court applied test of whether the plaintiff has established a prima facie case against the defendant and whether there is evidence that has been placed before the court upon which a reasonable court might give judgment against the defendant.
The court found that the plaintiff failed to establish a case against the defendant. Firstly, because the plaintiff was prevented by third parties from abstracting water from the dam because of low water levels. Secondly, in terms of the agreement between the parties the defendant did not guarantee the availability of water and was not liable for responsible for damages arising out of any failure to supply the water. Thirdly, the plaintiffÕs claim was wrongly premised since only 50 hectares of the land were under irrigation and not 90 hectares as contended.
Accordingly, the application for absolution from the instance at the close of the plaintiffÕs case was granted in favor of the defendant with costs.

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