Everisto Pfumvuti v Zimbabwe National Water Authority and Others

The applicant operated a business extracting and selling bulk water from Plot 3 Glen Forest, Domboshava. On 26 September 2014, bulk water operators were advised of a government decision to levy a charge of $3.00 per 1000 cubic metres of water extracted. The Minister later published Statutory Instrument 52/2015 on 24 April 2015 to regularise the collection of levies. The applicant refused to pay the levies, arguing they were unlawful and imposed without proper consultation. The first respondent (ZINWA) calculated that the applicant owed $282,062.40 (later revised to $159,459.00) and on 12 February 2016 ordered the applicant to cease operations and refused to renew his water extraction permit until the levies were paid. The applicant challenged the validity of SI 52/2015, the quantum of levies, and the refusal to renew his permit.

• Whether the applicant approached the court with dirty hands by continuing to extract water without paying levies
• Whether the applicant failed to exhaust domestic remedies before approaching the High Court
• Whether Statutory Instrument 52/2015 was ultra vires the Water Act [Chapter 20:24] for failure to consult stakeholders
• Whether the levy of $3.00 per cubic metre was irrational, manifestly excessive and unreasonable
• Whether the levy violated section 77 of the Constitution (right to safe, clean and potable water)
• Whether the applicant had locus standi to challenge the levy on behalf of the public or other associations

The application was dismissed with costs.

1. Section 85(2) of the Constitution provides that contravention of a law does not debar a person from approaching a court for constitutional relief, thereby displacing the common law 'dirty hands' doctrine in constitutional challenges. 2. Where adequate domestic remedies exist under statute (such as a statutory right of appeal), an applicant must exhaust those remedies before approaching the High Court and must show good cause for failure to do so. 3. When challenging delegated legislation for procedural defects, the applicant must establish non-compliance with the specific consultation requirements in the enabling legislation. Section 119 of the Water Act requires consultation only with the National Water Authority, not with all stakeholders or affected parties. 4. An applicant challenging legislation on constitutional grounds must demonstrate how their own constitutional rights have been violated and must establish locus standi to bring claims on behalf of others or in the public interest.

The court observed that the right to provide water is legislated to the state and not to private individuals, and that the applicant could not purport to take over the state's responsibility to provide clean water to citizens. The court also noted that determining whether proper consultation procedures were followed would require viva voce evidence at trial rather than being determinable on motion proceedings. The court commented that while the Borrowdale Ratepayers and Residents Association had validly raised the issue of the right to water under section 77 of the Constitution, the applicant was not a member and had not shown standing to bring the application on their behalf, especially given the Association's pending challenge.

This case clarifies the application of section 85(2) of the Zimbabwean Constitution, which explicitly allows persons who have contravened the law to still approach courts for constitutional relief, thereby limiting the common law 'dirty hands' doctrine in constitutional matters. The judgment reinforces the requirement to exhaust domestic remedies before approaching the High Court where adequate alternative remedies exist under statute (such as appeals under section 114(1) of the Water Act), unless good cause is shown. It also establishes that when challenging delegated legislation, applicants must demonstrate non-compliance with the specific consultation requirements in the enabling Act - general stakeholder consultation is not required unless mandated by statute. The case provides guidance on locus standi requirements when seeking to vindicate constitutional rights on behalf of others or the public.