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.