City of Harare v Jonpenn (Private) Limited

The City of Harare (applicant) is a Municipal Council that supplies water to Jonpenn (Private) Limited (respondent), a ratepayer. On 29 April 2015, the respondent challenged the balance on its statement, asserting it was up-to-date with payments and that certain payments had not been credited to its account. Without responding to or investigating the query, the applicant relied on s 8 of its Water By-Laws and disconnected water to the respondent's premises on 11 May 2015 after giving 24 hours' notice. The respondent approached the High Court, which issued an interim interdict on 21 May 2015 barring water disconnection without a court order. This interim order was confirmed on 1 June 2016. The applicant then sought to appeal belatedly, applying for condonation of late noting of appeal. During the Supreme Court hearing, the applicant acknowledged it had erroneously credited the disputed payments to a wrong account, meaning the respondent had indeed paid and the disconnection was wrongful.

• Whether the City of Harare could lawfully disconnect water supply under its By-Laws where there was a genuine dispute about payments
• Whether the constitutional right to water requires a court order before disconnection in disputed cases
• Whether condonation for late noting of appeal should be granted
• Whether Municipal By-Laws permitting disconnection based on the Council's opinion of amounts due are susceptible to abuse

The application was removed from the roll by consent with no order as to costs. The High Court's judgment confirming the interim interdict remained in force.

Municipal authorities may not disconnect water supply based solely on their opinion that amounts are due under Water By-Laws where there is a genuine dispute about payment, particularly where the municipality may be at fault. Demanding payment without justification on pain of disconnection of water amounts to unlawful extortion. The constitutional right to water requires procedural safeguards, including court intervention, before disconnection where disputes exist. Municipal by-laws that permit disconnection based solely on the Council's unilateral opinion are susceptible to abuse and must be exercised fairly and in accordance with constitutional rights.

BHUNU JA made important observations about public policy and the right to water. He took judicial notice that depriving someone of water can have "ghastly consequences" leading to epidemics of water-borne diseases such as cholera and dysentery capable of "wiping out whole populations." He observed that lack of water impedes production and every facet of economic development. The Court commented that it would have been inclined to dismiss the application with costs at a punitive scale had the parties not consented to removal from the roll. The judge noted he wrote reasons despite consent because the case "deals with important matters of public policy and interest." He emphasized that allowing a municipality to benefit from its own fault and error "is wholly unacceptable and offends against all notions of justice and fairness in a democratic society."

This case affirms the constitutional right to water in Zimbabwe and reinforces the principle that municipal authorities cannot arbitrarily disconnect water supply without a court order where there is a genuine dispute about payment. It highlights the potential for abuse of municipal by-laws and emphasizes the importance of procedural fairness in administrative actions affecting fundamental rights. The case demonstrates judicial oversight over municipal powers and the protection of citizens against arbitrary administrative action, particularly concerning essential services like water. The judgment also illustrates the serious public health and economic consequences of water disconnection and the need for municipalities to properly investigate disputes before taking drastic action.