Farai Mushoriwa v City of Harare

The applicant was a lawful tenant of flat number 12 at Northcliff block of flats in Harare. In May 2013, the City of Harare sent him a water bill for US$1,700.00, which he disputed, maintaining he had always paid his bills in full and on time and that the amount pertained to a bulk meter not connected to his premises. On 31 May 2013, the respondent unilaterally disconnected water supplies to the applicant's premises. The applicant filed an urgent chamber application for a spoliation order. The court granted a consent order for restoration of water services pending determination of the application. Despite this court order, the respondent defied it and disconnected water supplies again, requiring further court intervention and threats of contempt proceedings before reconnecting the supply.

• Whether a municipal authority can lawfully disconnect water supplies to a citizen on the basis of a disputed bill without a court order
• Whether section 8 of the City of Harare's water by-laws S.I 164 of 1913 is ultra vires the Urban Councils Act and the Constitution
• Whether the disconnection of water supplies violated the applicant's fundamental right to water under section 77 of the Constitution
• Whether the by-law unlawfully ousts the jurisdiction of the courts by allowing the municipality to be judge in its own cause
• Whether the municipality can exercise unfettered discretion in disconnecting water supplies

A final order was granted: (1) declaring the termination of the applicant's water supplies on the basis of a disputed bill without a court order to be unlawful self-help; (2) interdicting the respondent and its employees from interfering with or terminating the applicant's water supply without a court order; (3) ordering the respondent to pay costs on the higher legal practitioner and client scale.

A municipal authority cannot lawfully disconnect water supplies to a citizen on the basis of a disputed bill without first obtaining a court order establishing that the amount claimed is actually due. Section 69(2)(e) of the third Schedule to the Urban Councils Act, which governs water disconnections, deliberately omits the words "in the opinion of the council" and requires proof that charges are due before disconnection is lawful. Municipal by-laws that purport to confer unfettered discretion on councils to disconnect water supplies without judicial process are ultra vires the parent Act and the Constitution. The fundamental right to water under section 77 of the Constitution cannot be arbitrarily denied by state institutions without recourse to law. Courts have exclusive jurisdiction under section 171 of the Constitution to authoritatively determine disputes, and this jurisdiction cannot be ousted by municipal by-laws that allow councils to be judges in their own cause.

The court observed that the doctrine against deriving benefit from one's own wrongs, as articulated in Riggs v Palmer (1899) 115 NY 506 and applied in Wang & Ors v Ranchod & Ors 2005 (1) ZLR 415, prevents the respondent from arguing that its threats to disconnect defeated the applicant's peaceful possession. The court noted that those in positions of power must not abuse their authority by usurping the functions of courts to the detriment of innocent members of society. The court commended counsel for the respondent, Mr. Kwaramba, for taking prompt action to avert a confrontation between the respondent and the court. The court observed that it is a basic principle of legal policy that law should serve the public interest, and it is not in the public interest for a city council to deny citizens water at will without recourse to law. While the City Council has a right to collect debts, it cannot do so by unlawful means as every person including the City Council is subject to the law.

This case is significant in Zimbabwean jurisprudence as it affirms the fundamental constitutional right to water under section 77 of the Constitution and limits the power of municipal authorities to disconnect water supplies without judicial process. It establishes that municipal by-laws cannot oust the jurisdiction of courts or allow municipalities to act as judges in their own cause. The judgment reinforces the principle that all state institutions, including local government authorities, must respect fundamental human rights and cannot resort to self-help remedies that violate constitutional rights. It clarifies the proper interpretation of section 69(2)(e) of the Urban Councils Act and establishes that municipalities must prove through proper judicial process that amounts are due before disconnecting services. The case also demonstrates the court's authority to enforce its orders and sanction contemptuous conduct by public authorities.