On 6 May 2004, the applicant (Zimbabwe National Water Authority) and respondent (Kadoma Municipality) entered into a written agreement for the purchase and sale of raw water for a period of ten years. The agreement stipulated billing per allocation rather than per consumption, requiring the respondent to pay for 15,000 mega litres of raw water per year regardless of actual consumption. The respondent failed to pay US$547,627.81 due as at end of September 2011. The parties met on 17 October 2011 and agreed on a compromised figure of US$167,114.22 as being due. When the respondent failed to pay the acknowledged compromised debt, the applicant issued summons under case number HC 1378/12 claiming the compromised sum together with interest at 5% per annum and collection commission. The respondent entered appearance to defend, pleading that billing per allocation is repugnant to public policy and that it should only pay for consumed water less what had been paid since October 2011. The applicant then brought an application for summary judgment.
The application for summary judgment was dismissed with costs.
Summary judgment should not be granted where clearly arguable questions of law arise that should properly be dealt with on exception or at trial. Where a contract raises genuine questions of public policy, particularly involving a public entity contracting on behalf of ratepayers for essential services, and questions whether charging for unconsumed services is unconscionable, unduly harsh, oppressive, or inimical to community interests, these constitute real difficulties on matters of law that render summary judgment incompetent and require full adjudication.
The court made observations raising (without definitively deciding) important questions about the public policy implications of the billing per allocation clause: whether asking residents and ratepayers to pay for water not received is inimical to the interests of the community; whether such an agreement is contrary to law or morality; whether it is unconscionable; and whether it is unduly harsh or oppressive. The court noted the special nature of the respondent as a local authority that is not a profit-making organization but a public entity acting on behalf of ratepayers and residents who actually pay for the water, suggesting these factors are relevant to the public policy analysis. The court also referenced legislation governing fairness of consumer contracts in the jurisdiction as relevant to the determination.
This case is significant in Zimbabwean jurisprudence (though the user requested South African analysis, this is actually a Zimbabwean case) as it addresses the intersection of public policy considerations in contracts involving public entities and summary judgment procedure. It establishes that where a municipality contracts on behalf of ratepayers and residents, questions about whether payment for unconsumed services is contrary to public policy, unconscionable, or oppressive raise clearly arguable questions of law that must be fully ventilated at trial rather than disposed of summarily. The case also reinforces the principle that summary judgment is inappropriate where real difficulties on matters of law arise, particularly concerning consumer protection and public policy in contracts involving public entities.