City of Kwekwe v Zimbabwe National Water Authority

The parties entered into a water supply agreement on 15 February 2013, with ZINWA (respondent) as provider and Kwekwe City Council (applicant) as consumer. The agreement allocated 30,000 mega litres per year to the applicant at specified rates (US$6 per mega litre national blend price, US$1.06 water levy, US$1.00 sub-catchment rate, plus 15% VAT). Despite consumption and billing, the applicant failed to pay for the water supplied. By 30 April 2014, the applicant owed ZINWA US$894,802.94, having only paid US$6,000.00. On 12 November 2014, the applicant obtained a provisional order requiring ZINWA to restore water supply and interdicting interference with water supply. The applicant alleged that ZINWA disconnected water on 5 November 2014, claiming injury to its customers like ZIMASCO and Delta Beverages. ZINWA denied disconnection, explaining that there was only decreased water supply due to inability to carry out maintenance works because of non-payment, but water supply had continued.

• Whether the applicant established a prima facie right to water supply despite non-payment
• Whether there was an actual or well-grounded apprehension of infringement of the applicant's right
• Whether the applicant would suffer irreparable harm if the interdict was not granted
• Whether the applicant had any other satisfactory remedy
• Whether the balance of convenience favoured granting the interdict
• Whether the requirements for confirmation of a provisional interdict were satisfied

The provisional order granted on 12 November 2014 was discharged with costs awarded against the applicant.

For a provisional interdict to be confirmed into a final order, the applicant must satisfy all the traditional requirements established in Setlogelo v Setlogelo 1914 AD 221: (1) a prima facie right, even if open to doubt; (2) an infringement or well-grounded apprehension of infringement of that right; (3) well-grounded apprehension of irreparable harm; (4) absence of other satisfactory remedy; and (5) balance of convenience favouring the grant. A clear right cannot be established merely by reference to correspondence but must be grounded in the underlying contractual agreement. An applicant cannot claim injury to third parties who are not party to the proceedings - the injury must be to the applicant itself. Where an applicant owes substantial debt for services and has failed to make payment, regular payment of the outstanding amount constitutes a satisfactory alternative remedy, precluding the grant of an interdict.

The court observed that despite the applicant's failure to pay for water (owing US$894,802.94 against payment of only US$6,000.00), the respondent had continued to supply water, which indicated the respondent's good faith in maintaining the relationship. The court's comment that "the satisfactory remedy, in my view, was to make regular payments of what it owed so that the respondent would properly manage the water supply" suggests judicial displeasure with a party seeking equitable relief while remaining in substantial breach of its own contractual obligations.

This case reinforces the strict application of the established requirements for obtaining an interdict in Zimbabwean law, particularly the requirement that an applicant must establish a clear prima facie right. It also clarifies that parties seeking interdicts must demonstrate injury to themselves rather than third parties, and that where a party is in breach of contractual payment obligations, payment of the debt constitutes a satisfactory alternative remedy that must be pursued rather than seeking an interdict. The case is significant for local authorities and utility providers in contractual disputes, emphasizing that non-payment cannot be ignored when seeking equitable relief.