Clinton Masanga and Others v Mutasa Rural District Council

Nine residents of Tsvingwe High Density Suburb, Penhalonga, in Mutasa Rural District Council area approached the court complaining that prior to September 2021, they received constant daily water supply from the respondent council. However, from September 2021, the respondent began rationing water supply, providing water only at night twice per week without prior warning to residents. The applicants alleged this inadequate water supply forced them to resort to unsafe, untreated water sources, exposing them to diseases and contamination from chemicals used by artisanal miners in streams and rivers. They argued this was particularly problematic during the Covid-19 pandemic when clean water was essential for hygiene. The applicants approached the respondent about the issue but received no satisfactory response. All nine applicants were bona fide residents of Tsvingwe who paid levies to the respondent and occupied specific stands in the suburb, as evidenced by receipts of payments. The respondent admitted it supplies water to the area but argued it receives water from the City of Mutare, which had introduced stringent water rationing, thereby incapacitating the respondent's ability to provide adequate water to its residents. The respondent also cited budget constraints and competing service delivery obligations.

• Whether the applicants had locus standi to institute the proceedings
• Whether there was a fatal non-joinder of the City of Mutare as a party
• Whether the applicants failed to exhaust domestic remedies before approaching the court
• Whether the relief sought was vague and imprecise
• Whether the deponent to the opposing affidavit was authorized to act on behalf of the respondent
• Whether section 77(a) of the Constitution of Zimbabwe conferring the right to safe, clean and potable water is justiciable
• Whether the respondent violated the applicants' constitutional right to clean, safe and potable water
• Whether the applicants met the requirements for a mandamus compelling the respondent to supply adequate water

The court declared that the respondent's failure to ensure supply of adequate, constant, clean and potable water violated the applicants' rights under section 77(a) of the Constitution of Zimbabwe 2013. The respondent was ordered to supply adequate, constant, clean and potable water to the applicants' premises within sixty (60) days. The respondent was ordered to pay the costs of the application.

The binding legal principles established are: (1) Section 77(a) of the Constitution of Zimbabwe 2013, which enshrines the right to safe, clean and potable water, is directly enforceable and justiciable in terms of section 85 of the Constitution; (2) Local authorities have a constitutional obligation under s 77(a) and statutory duty under s 71 of the Rural District Councils Act read with s 28 of the First Schedule to provide adequate, constant, clean and potable water to residents; (3) Financial constraints, budgetary limitations, and reliance on third-party water suppliers do not absolve a local authority from meeting its constitutional and statutory obligations to provide water; (4) Any interference with the constitutional right to water must be prescribed by law and pursue a legitimate aim - interference not sanctioned by law entitles affected persons to a remedy; (5) Residents who pay levies to a local authority and occupy stands in the council area have locus standi to enforce their water rights against the council; (6) The requirements for a mandamus are: (a) a clear or defined right, (b) an injury actually committed or reasonably apprehended, and (c) the absence of similar protection by any other adequate ordinary remedy; (7) Failure to attach a council resolution authorizing a Chief Executive Officer to depose to an affidavit, while not ideal, does not automatically nullify opposition papers where the deponent's position and authority are not disputed; (8) Non-joinder of a third party (such as an upstream water supplier) is not fatal where that party has no direct and substantial interest in the outcome and no direct contractual relationship with the applicants, especially in light of Rule 32(ii) which provides that no matter shall be defeated by non-joinder.

The court made several non-binding observations: (1) It cited with approval the Liberian proverb "If the townspeople are happy, look for the chief," emphasizing that water is life and local authorities are accountable to residents for water provision; (2) The court noted that sometimes parties raise preliminary points merely for the sake of doing so, and warned that such conduct should be visited with cost orders in future; (3) The court observed that life is constituted by various complementary components including clean water, shelter, food and entertainment, with water being at the core as without it there is no "living"; (4) The court emphasized that clean water is essential for preventing waterborne diseases and is particularly critical during the Covid-19 pandemic for maintaining hygienic practices; (5) The court noted that if respondent's Chief Executive Officer lacked legal capacity or authorization to represent the council, this would strengthen rather than prejudice the applicants' case; (6) The court observed that even if a non-resident had raised the complaint and outlined proper grounds, the court would have intervened on behalf of voiceless affected persons; (7) The court noted that execution of court orders is secondary to the primary fundamental issue of declaring that local authorities must meet their constitutional and statutory obligations; (8) The court expressed its view that the respondent is financially capable of sustaining its water supply obligations if revenue collected from consumers is exclusively and properly used toward providing clean water; (9) The court acknowledged the importance of corporate governance obligations requiring local authorities to account to ratepayers as service providers and to explain challenges transparently to inform stakeholders.

This case is significant in Zimbabwean constitutional jurisprudence as it affirms the justiciability and enforceability of socio-economic rights, specifically the right to water enshrined in section 77(a) of the Constitution of Zimbabwe 2013. The judgment establishes that local authorities cannot rely on financial constraints, budgetary limitations, or third-party failures (such as water supply issues from another municipality) to escape their constitutional and statutory obligations to provide clean, safe and potable water to residents. The court applied a comprehensive six-step test from Khanyeza v Mandizha for determining whether rights have been infringed and whether remedies should be granted. The case reinforces that any interference with constitutional rights must be prescribed by law and pursue a legitimate aim, and that failure to meet these requirements entitles affected persons to judicial remedies including mandatory orders (mandamus). The judgment emphasizes that water is fundamental to the right to life and that during public health emergencies like Covid-19, the duty to provide clean water becomes even more critical. It also clarifies procedural issues regarding locus standi of residents, non-joinder of third parties, and exhaustion of remedies in constitutional litigation against local authorities.