Forbes & Thompson (Bulawayo) (Pvt) Ltd v The Zimbabwe National Water Authority and Timothy Kadyamusuma

The applicant had a long-standing agreement with the first respondent (Zimbabwe National Water Authority) to pump water from Blanket Dam in Gwanda for supply to Vumbachikwe Mine and its residents, in return for payment of levies. The agreement expired on 31 March 2016 but both parties continued performing in accordance with its terms and were negotiating renewal. The applicant was in arrears of $40,000.00 in levies. On 5 May 2016, the second respondent (representing the first respondent) threatened to disconnect water supply if payment was not made in full, and subsequently entered the applicant's pump house, placed locks over the applicant's existing locks, and disconnected the water supply to the mine and its residents. The applicant brought an urgent application seeking restoration of water supply and an interdict preventing further interference.

• Whether the matter was urgent and properly before the court
• Whether the applicant established a prima facie right to water supply
• Whether the respondents were entitled to resort to self-help by disconnecting water supply due to arrears
• Whether the applicant had been unlawfully despoiled of possession
• Whether the requirements for granting an interdict had been satisfied

The court granted the following interim relief: (1) The 1st and 2nd respondents were ordered immediately to reconnect the pipes and restore water supply from Blanket Dam to Vumbachikwe Mine; (2) Pending the return date, the respondents were interdicted from interfering with applicant's possession of and access to its pump house at Blanket Dam; (3) The respondents were ordered to pay costs of suit jointly and severally, the one paying the other to be absolved.

The binding legal principles established are: (1) The constitutional right to water under section 77 of the Constitution cannot be denied through self-help by state entities seeking to recover debts - proper legal process must be followed; (2) In spoliation proceedings, an applicant need only prove peaceful and undisturbed possession prior to being despoiled - the lawfulness of the possession is irrelevant; (3) A person in possession of property cannot be interfered with except by due process of law, regardless of how unlawful their possession may be or how exposed they may be to ejectment proceedings; (4) Self-help remedies are not permitted at law - creditors must pursue proper legal remedies for debt recovery; (5) Spoliation proceedings are by their nature urgent and must be adjudicated upon speedily (ante omnia) based on the simple facts of possession and dispossession.

The court observed that the applicant had joined hands with the state in achieving the constitutional goal of providing water to citizens through reticulating water supplies from the dam. The court noted that on the face of it, it would not be constitutional for the state to neglect its duty under section 77 of the Constitution simply because there are outstanding levies owed. The court also commented on the threatening tone of the second respondent's email, noting that it clearly showed an intention to take the law into his own hands rather than pursuing proper legal remedies.

This case is significant as it affirms the constitutional right to water under section 77 of the Constitution of Zimbabwe and emphasizes that this right cannot be arbitrarily curtailed even where there are outstanding debts. It establishes that state entities and their representatives cannot resort to self-help to enforce payment obligations when doing so would violate constitutional rights. The judgment reinforces the principle that spoliation remedies are available even where possession may be unlawful, and that the remedy is granted ante omnia (before all else) based simply on proof of possession and dispossession. The case demonstrates the application of constitutional rights in practical commercial disputes and the limits on creditors' remedies where essential services are concerned.