Hopcik Investment (Private) Limited v Minister of Environment Water and Climate and City of Harare

The applicant is the owner of property at 3 Tynward Close, Ballantyne Park, Harare. The property had received no water supply for approximately three years. The first respondent is the Minister responsible for the administration of the Water Act, with responsibility to regulate water supply. The second respondent is the City of Harare, the local authority mandated to provide and maintain water supply within the council area under s 183 of the Urban Council Act. The applicant alleged that while other properties in Harare were receiving regular water supply, the second respondent had failed to ensure equitable distribution and had not attended to broken water pipes for extended periods. The applicant sought an order compelling the respondents to supply 15,000 litres of potable water weekly to its premises. The respondents defended the application on the basis of financial constraints, inadequate infrastructure, population growth outstripping supply, aged pipes causing leakages, equipment breakdowns, and poor rainy seasons. They argued they were engaging investors and partners and had signed memorandums of understanding to improve the situation.

• Whether the applicant has a constitutional right to access safe, clean and potable water under s 77 of the Constitution of Zimbabwe
• Whether the respondents have a duty to supply water to the applicant's premises
• Whether the respondents have taken reasonable legislative and other measures within available resources to progressively realize the right to water as required by s 77 of the Constitution
• What remedies are available when state authorities fail to fulfil their constitutional obligations to provide water
• The interpretation of the word 'may' in s 183 of the Urban Councils Act regarding councils' powers to provide water

The court ordered: (1) The first and second respondents jointly and severally shall ensure a supply of potable water to the applicant's premises at 3 Tynwald Close, Ballantyne Park, Harare within 3 months of the order; (2) Should the respondents through no fault of their own be unable to supply water for any given period, they may apply to court for variation of the order, but only after first requesting variation from the applicant and being unreasonably refused; (3) The respondents are to bear the costs of the application.

The binding legal principles established are: (1) Section 77 of the Constitution of Zimbabwe creates an enforceable constitutional right to safe, clean and potable water; (2) The State has a constitutional obligation to take reasonable legislative and other measures, within available resources, to progressively realize the right to water; (3) Where authorities fail to supply water, they must provide good and acceptable reasons for the failure - mere assertion of resource constraints is insufficient without demonstrating what reasonable steps have been taken within available resources; (4) The word 'may' in s 183 of the Urban Councils Act does not grant councils discretion to provide or withhold water at will, but recognizes practical limitations while requiring accountability for failures; (5) Where water resources are scarce, authorities have a duty to distribute the available water fairly and equitably among all residents rather than selectively supplying some while completely depriving others; (6) Failure to ensure supply of safe, clean and potable water without reasonable justification constitutes a breach of constitutional rights under s 77; (7) Courts may grant mandatory orders compelling government authorities to fulfill their constitutional obligations regarding socio-economic rights such as water.

The court made several non-binding observations: The judgment opens with a lengthy commentary on the water crisis in Harare, noting that taps have run dry for years, pipe bursts are common, diseases like cholera and typhoid have occurred, residents have resorted to digging wells and boreholes, and city authorities have adopted a nonchalant attitude with empty promises. The court observed that 'Water is the most basic of all needs. Without water there is no life.' The court cited US Secretary of Agriculture Ezra Taaft Benson's 1955 statement about water becoming a major national concern, noting these sentiments apply equally to Zimbabwe. The court referenced the South African case of Mazibuko v City of Johannesburg and UN CESC General Comment 15, noting that according to WHO, between 50 and 100 litres of water per person per day are needed to meet basic needs. The court commented that responsible authorities 'lack the will' to accomplish their objectives and cannot be allowed to 'merely observe and adopt a nonchalant attitude.' The court questioned whether the respondents had failed to prioritize their needs given they have access to large sums of revenue monthly. The court expressed skepticism about repeatedly announced investors and partners that never materialize, and criticized the respondents' 'casual attitude' to the issue. The court suggested that if high terrain is the issue, technology should be employed to get water uphill. While the applicant sought 15,000 litres per week, the court noted the basis was not established but granted it anyway in exercise of discretion given the respondents' failure to meaningfully challenge the amount.

This case is significant as one of the first Zimbabwean cases to enforce the newly introduced constitutional right to water under s 77 of the 2013 Constitution. It establishes that the right to safe, clean and potable water is justiciable and enforceable through the courts. The case holds government authorities accountable for their constitutional obligations and clarifies that resource constraints do not automatically absolve the State of its duties - authorities must demonstrate they have taken reasonable measures within available resources to progressively realize the right. The judgment emphasizes that water rights require prioritization given water's fundamental importance to life and other rights. It also establishes principles of equitable distribution where resources are scarce - selective supply to some residents while completely depriving others is impermissible. The case demonstrates the courts' willingness to grant mandatory orders compelling government to fulfill socio-economic rights.