Bothwell Property Co (Private) Limited v City of Harare and Tendai Mahachi N.O. (The Town Clerk)

Bothwell Property Co (Private) Limited was a lessee of premises at 66 Jason Moyo Avenue, Harare, receiving water supplies from the City of Harare (the Council). A dispute arose over water bills issued by the Council, which combined water consumption charges and rates. The applicant claimed it had been diligently paying its bills and requested a proper reconciliation, alleging that payments were not being credited to its account and that disconnection and interest charges were being added without notice. The applicant suggested its account should have a credit balance. On 11 May 2015, the Council disconnected the applicant's water supply without notice. The applicant approached the court on an urgent basis seeking restoration of water and an interdict against further disconnections. A provisional order was granted on 18 May 2015 compelling restoration of water supplies and interdicting the respondents from interfering with the water supply pending finalization of the matter. The Council opposed, arguing that the disconnection was lawful under section 8 of the Water By-Laws 164-1913, which allows disconnection on 24 hours' written notice for failure to pay amounts due. The Council contended the applicant's dispute was illusory and that payments made did not discharge the total indebtedness.

• Whether the City of Harare is authorized to disconnect water supplies to consumers without a court order where they are in arrears
• Whether section 8 of the Water By-Laws 164-1913 and section 69(2)(e)(i) of Schedule 3 of the Urban Councils Act conform with the Constitution, particularly section 77 (right to water)
• Whether the right to water under section 77 of the Constitution is subject to limitations in a democratic society
• Whether disconnecting water supplies where a consumer disputes the amount due, on 24 hours' written notice and without a court order, constitutes unlawful self-help
• Whether the requirements for a final interdict were met
• Whether the disconnection violated the right to administrative justice under section 68 of the Constitution and the Administrative Justice Act

The application for confirmation of the provisional order was granted with costs. It was ordered that: (1) The first respondent, all of its employees and assigns shall not disconnect applicant's water supplies at Bothwell House, 66 Jason Moyo Avenue, Harare, without a court order expressly authorizing it to do so; (2) The first respondent shall pay costs of suit.

The binding legal principles established are: (1) Section 8 of the Water By-Laws 164-1913 must be interpreted to permit the Council to determine the sum due and to give 24 hours' notice of intention to disconnect water, but not to determine unilaterally whether a consumer has failed to pay where the quantum of liability is genuinely disputed. (2) Disconnecting water supplies without a court order where the consumer disputes the amount due constitutes conduct inconsistent with the Constitution, particularly sections 2 (supremacy of Constitution), 68 (right to administrative justice), and 77 (right to water), and is invalid to the extent of the inconsistency. (3) A standard clause on monthly water bills warning of disconnection within 24 hours without further notice does not constitute adequate notice as required by section 3 of the Administrative Justice Act and does not provide a reasonable opportunity to make adequate representations. (4) Municipal authorities exercising administrative functions must comply with section 68 of the Constitution and the Administrative Justice Act when taking action that affects citizens' rights, including disconnection of water supplies. (5) The determination of whether a consumer has failed to pay disputed amounts can only be made through an adjudication process in a court of law. (6) Existing laws must be construed in conformity with the Constitution under section 10 of Part 4 of the Sixth Schedule to the Constitution, and are void to the extent of any inconsistency.

The court made several non-binding observations: (1) The court acknowledged the difficult economic times and the challenges facing administrative bodies in collecting revenue for service delivery, noting the delay in aligning laws with the new Constitution. (2) The court recognized the need to distinguish between consumers who have fully paid, those in arrears who are unconcerned, and those in arrears who have sought court protection. (3) The court observed that the doctrine of the margin of appreciation merits consideration in proper circumstances, noting it is arguable that the right to water is not absolute and could be curtailed in the interest of quick recovery of service charges to enable continued provision of water to other consumers. (4) The court noted that if the Legislature intends to confer unfettered discretion on the Council to disconnect water supplies where quantum is disputed, it should expressly say so when the Urban Councils Act is aligned with the new Constitution. (5) The court commented that section 198(3) of the Urban Councils Act, conferring power on the Council to do anything necessary for administering by-laws, does not trump the Constitution even if couched in peremptory terms. (6) The court expressed sympathy for the practical difficulties of requiring judicial process for each disconnection, but held that constitutional rights cannot be sacrificed for administrative convenience.

This case is significant in Zimbabwean constitutional law as it addresses the interface between the constitutional right to water (section 77), the right to administrative justice (section 68), and pre-constitutional legislation. The judgment establishes that municipal authorities cannot arbitrarily disconnect water supplies where the quantum of liability is genuinely disputed without obtaining a court order. It affirms the supremacy of the Constitution and requires that existing laws, including municipal by-laws dating from 1913, must be interpreted in conformity with constitutional rights. The case reinforces that administrative bodies must comply with principles of administrative justice and procedural fairness, even when exercising powers under legislation. It demonstrates the application of constitutional rights to essential services and places limits on municipal authorities' coercive debt collection measures. The judgment emphasizes that water is fundamental to life and its denial cannot be arbitrary, even in the context of debt recovery. It provides guidance on how courts should interpret apparently draconian legislative provisions to bring them into conformity with constitutional values rather than declaring them wholly invalid.