Supreme Court gives Harare green light to disconnect water to defaulters

HARARE - The Harare City Council (HCC) can disconnect water supply to premises to recover debt, the Supreme Court has ruled.

That water supply is an essential service cannot be used as a pretext to prevent disconnection of supply lines if a consumer defaults on his payment, said a landmark September 20 ruling by Justices Bharatkumar Patel, Tendai Uchena and Vernanda Ziyambi.

The key ruling sets aside a provisional order barring councils from disconnecting water supply.

HCC had approached the Supreme Court after Harare lawyer Farai Mushoriwa got temporary reprieve from the High Court for the disconnection of water supply at his flat by council over non-payment of a $1 700 water bill.

“Having regard to my earlier assessment of the processes embodied in the by-laws pertaining to the supply of water, I take the view that the power to disconnect water supply exercisable by the council is eminently reasonable and does not in any way contravene Section 77 of the Constitution,” read the unanimous Supreme Court judgment

“Bearing in mind the enormous economic and budgetary considerations that would ordinarily arise in the provision of safe and clean water to a large populace, it cannot be said that the disconnections of water supply by reason of non-payment for water consumed in any specific instance constitutes an infringement of the constitutional right to water.”

The bench also noted that it may be necessary to do so to ensure that the majority of non-defaulting consumers continue to enjoy their right to water.

They also noted that disconnections for defaulting consumers are necessary measures to safeguard the right of other consumers.

“This approach accords squarely with the dictates of Section 86 (1) of the Constitution, to with, that fundamental rights and freedoms must be exercised reasonably and with due regard for the rights and freedoms of others.

“In the premises, I am of the considered opinion that the application and enforcement of the 1913 by-laws do not negate or impede the progressive realisation of the right to safe, clean and potable water as envisaged by Section 77 of the Constitution,” the judgement said.

In his application against disconnections, Mushoriwa said council rushed to disconnect his water supply despite him not owing the local authority anything.

High Court Judge Justice Chinembiri Bhunu said Section 8 of the Water By-Laws (Statutory Instrument 164/1913) that was being relied upon by councils in disconnecting water without seeking recourse from the courts, was in breach of Section 77 of the Constitution, which classifies clean water as a basic right.

However, due to the cholera outbreak that is currently being experienced, councils have temporarily suspended disconnections until the situation is under control.

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