City of Harare v Farai Mushoriwa

In May 2013, the City of Harare sent Mushoriwa a water bill for $1,700 for services rendered. Mushoriwa disputed the bill, claiming it related to a bulk meter not connected to his leased premises. On 31 May 2013, the City disconnected Mushoriwa's water supply. Mushoriwa filed an urgent chamber application to restore his water supply pending resolution of the dispute. The High Court granted a provisional order in Mushoriwa's favour, ordering immediate restoration of water supply and restraining the City from disconnecting without court authority. The City appealed. By the time the appeal was heard, Mushoriwa had vacated the premises.

• Whether the requirements for spoliatory and interdictory relief were met
• Whether the City had lawful power under the 1913 Bye-laws to disconnect water supply for non-payment
• Whether the 1913 Bye-laws (clause 8(a) of the standard contract) were ultra vires the Urban Councils Act
• Whether the Bye-laws were unconstitutional for infringing the right to water under section 77 of the Constitution
• Whether adequate notice of disconnection was given
• Whether the interim relief granted had the same effect as the final relief sought

1. The appeal is partially allowed. 2. The provisional order granted by the High Court is set aside. 3. Each party shall bear its own costs in respect of the appeal and the application in the court below.

The binding legal principles are: (1) Municipal by-laws permitting water disconnection for non-payment are intra vires enabling legislation and constitutional, provided they incorporate reasonable dispute resolution mechanisms and adequate notice requirements. (2) The constitutional right to safe, clean and potable water under section 77 is a progressive right to be achieved within available resources, not an absolute right to immediate provision of water on demand. (3) Disconnection of water supply for non-payment, when exercised reasonably and in compliance with procedural safeguards in by-laws, does not violate the constitutional right to water. (4) Courts must apply benevolent interpretation to municipal by-laws, presuming they will be reasonably administered, and should only strike them down if they are manifestly unreasonable, unjust, arbitrary or oppressive. (5) The phrase "in the opinion of the council" in by-laws must be construed as requiring an objective reasonable opinion, not unfettered subjective discretion, especially when qualified by procedural safeguards. (6) By-laws must be read as a composite whole, not in isolation, and in a purposive manner having regard to the overall objects of the enabling statute.

The Court made several non-binding observations: (1) The distinction between provisions in by-laws versus those in standard form contracts annexed to by-laws is not significant when the contract incorporates the by-laws by reference. (2) Section 77 of the Constitution is "essentially policy-oriented and hortatory in nature" though not entirely nugatory. Its enforceability is not self-evident in every circumstance. (3) Violation of section 77 would be implicated where the State fails to provide adequate water supply to a community, or where supplied water is contaminated, but not where an individual consumer with adequate access is disconnected for non-payment. (4) The Court noted it would be "institutionally inappropriate" for courts to determine precisely what social and economic rights entail and what steps government should take - this is primarily for the legislature and executive as matters of democratic accountability (citing with approval the South African Constitutional Court in Mazibuko). (5) The Court observed that the power to disconnect individual consumers for non-payment may be necessary to safeguard the rights of other consumers at large, in accordance with section 86(1) requiring rights to be exercised with due regard for others' rights.

This is a landmark Zimbabwean case on the constitutional right to water and municipal powers to disconnect water services. It establishes that: (1) the constitutional right to water under section 77 is a progressive socio-economic right, not an absolute entitlement; (2) municipal by-laws permitting disconnection for non-payment are constitutionally valid when they include reasonable dispute resolution mechanisms and notice requirements; (3) courts should apply benevolent interpretation to municipal by-laws and exercise restraint before striking them down; (4) the right to water must be balanced against the rights of other consumers and the practical realities of municipal service delivery; (5) delegated legislation will be upheld unless it is manifestly arbitrary, unjust, partial or oppressive. The judgment provides important guidance on interpreting socio-economic rights in resource-constrained contexts and the limits of judicial intervention in municipal administration.