City of Harare v Gordon Dutton Thomas

The City of Harare (applicant) sought to vary a consent order granted in HC 5469/10, which required it to supply water to the first respondent's property at 15 Dulwich Road, Greendale, for a minimum of 2 days per week. The consent order included a clause permitting the respondents to apply for variation if the applicant unreasonably refused to consent to such variation. The applicant requested the first respondent's consent to vary the order in June 2012, proposing that it supply water "as and when it is able to do so." The first respondent refused, stating the information provided was inadequate. The applicant cited challenges including: aging infrastructure and pumps beyond their lifespan, frequent power cuts, the high altitude location of the property requiring multiple pumping stages, bankruptcy and inability to purchase new equipment, and obligations to prioritize water supply to state institutions. The first respondent had previously successfully brought contempt of court proceedings against the applicant for non-compliance with the consent order.

• Whether the applicant had established grounds to vary the consent order based on impossibility of performance
• Whether the first respondent unreasonably refused to consent to the variation as required by the consent order
• Whether Rule 449 of the High Court Rules (correction, variation and rescission of orders) applied to this variation application
• What standard of evidence is required for a party seeking to vary a consent order based on changed circumstances
• Whether a variation that renders an order open-ended and unenforceable is permissible

The application for variation of the consent order was dismissed with costs.

A consent order may only be varied within the scope contemplated by the variation clause itself. Where a consent order provides for variation based on reduction of frequency of performance, a court will not grant a variation that effectively discharges the obligation entirely or renders it unenforceable by making it contingent on the obligor's unilateral determination of ability to perform. A party seeking variation of a consent mandamus requiring performance of a statutory duty must provide sufficient evidence of: (i) the nature of impediments to performance; (ii) remedial measures taken or contemplated; and (iii) timelines for overcoming challenges. The refusal to consent to a variation is not unreasonable where the party seeking variation has failed to provide adequate information to justify the variation. A public authority cannot use claims of financial difficulty or operational challenges to avoid performing statutory obligations through open-ended variation of court orders requiring such performance, particularly where no concrete remedial plan is demonstrated.

The court made several non-binding observations: (1) Courts should endeavor to encourage and give judicial support to negotiated settlements between opposing parties, as compromise agreements promote orderly and effective justice administration, reduce costs and case loads, and help parties retain amicable relationships. (2) When parties make follow-up inquiries about reserved judgments, they should copy correspondence to opposing parties to maintain transparency and avoid appearance of improper ex parte communication with the judge. (3) Section 4 of Statutory Instrument 164 of 1913 (City of Harare by-law providing that the City does not guarantee uninterrupted water supply and is not liable for failure due to breakdowns) is not unreasonable despite being over 100 years old, as it simply addresses system breakdowns rather than eliminating the obligation to supply water, and does not derogate from the constitutional right to safe, clean, and potable water under s 77 of the Constitution. (4) The court suggested (as an aside not forming part of the ratio) that the matter could ideally be resolved through compromise if both parties were open and frank with each other, with the applicant demonstrating bona fides by giving the first respondent hope rather than gloom, though this did not constitute a direction to the parties. (5) The principle of res judicata would not prevent the applicant from bringing a fresh application for variation with better evidence in future.

This judgment is significant in Zimbabwean law (and relevant to South African administrative and civil procedure law by analogy) for establishing principles regarding variation of consent orders, particularly mandamus orders compelling performance of statutory duties. It establishes that: (1) parties seeking variation of consent orders must provide sufficient evidence and demonstrate remedial measures being undertaken; (2) variations that render court orders unenforceable or open-ended will not be granted; (3) public authorities cannot escape statutory obligations through vague claims of inability to perform without demonstrating concrete steps toward compliance; (4) consent orders containing variation clauses must be interpreted according to their terms and cannot be used to achieve discharge of obligations; (5) courts should encourage alternative dispute resolution even in applications concerning existing court orders. The judgment also addresses judicial administration, emphasizing constitutional requirements for timely delivery of judgments and proper case management.