Judgment No.

SC 54/2018
Case No. SC 228/14
1

REPORTABLE (44)

CITY OF HARARE
v
FARAI MUSHORIWA

SUPREME COURT OF ZIMBABWE

PATEL JA, UCHENA JA & ZIYAMBI AJA
HARARE, 25 SEPTEMBER 2017 & 20 SEPTEMBER 2018

F. Girach, for the appellant

T. Mpofu, for the respondent

PATEL JA: This is an appeal against the judgment of the High Court

granting a provisional order in favour of the respondent pursuant to an urgent chamber

application filed by the latter. The relevant factual background is as follows.

In May 2013, the appellant sent to the respondent a bill of $1,700 for water

services rendered. The respondent disputed the bill claiming that it related to a bulk meter

not connected to his leased premises. On 31 May 2013, the appellant disconnected the

respondent’s water supply. The respondent then filed an urgent chamber application to

restore his water supply pending the resolution of the dispute. At the time when this appeal

was heard, the respondent had vacated the premises in question.

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High Court Judgment

The High Court found that the relevant legislation governing water supplies

divested the appellant of any unfettered discretion to disconnect water supplies. In any

case, where the appellant sought to do so for any alleged failure to pay, it could only

disconnect upon proof that the consumer in question had failed to pay the charges due.

Moreover, the appellant could not arrogate to itself the right to determine when payment is

due without the requisite proof secured by due process or recourse to a court of law. The

court opined that the right to potable water is enshrined in the Constitution and that the

appellant, being a public body, cannot deny water to any citizen without just cause.

Furthermore, the relevant by-law relied upon by the appellant was not only unconstitutional

but also ultra vires its parent legislation because it conferred sole jurisdiction upon the

appellant to determine any disputed bill without recourse to the courts.

In the event, the court a quo granted interim relief, pending the final

determination of the matter, ordering the appellant to immediately restore water supply to

the respondent’s rented premises and to refrain from interfering with the respondent’s

possession of the premises by terminating his water supply. The appellant was also ordered

to pay the costs of suit on a legal practitioner and client scale. The final order sought in the

provisional order contained an interdict prohibiting the appellant from interfering with,

disrupting or terminating the respondent’s water supply without the authority of a court

order.
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Grounds of Appeal

There are eight grounds of appeal in this matter. In essence, they relate, firstly, to

the relief granted by the court a quo and, secondly, to the legality of the appellant’s actions

generally. As regards the first aspect, the appellant challenges the provisional order on the

grounds that the requirements for spoliatory and interdictory relief were not met and that

the interim relief granted by the court has the same effect as the final relief sought. As for

the second aspect, the grounds of appeal are premised on the power of the appellant to

make by-laws and rules for its effective administration and the proposition that it acted

lawfully in terms of those by-laws. The appellant impugns the finding of the court that the

relevant by-law is both unconstitutional and ultra vires the enabling Act. The appellant

further asserts that the right to water is not absolute but subject to limitations necessary for

regional and town planning.

Power to Disconnect Water Supplies

The appellant derives its right to discontinue water supplied to its

consumers from an antiquated Government Notice No. 164 of 1913, titled Bye-laws for

Regulating the Supply and Use of Water within the Municipality of Salisbury. In particular,

it relies not upon any specific by-law but upon a clause contained in its standard form

contract governing the supply of water by meter, which contract is annexed as a schedule

to the Bye-laws. Clause 8(a) of the standard contract stipulates that:

“The Council may, by giving twenty-four hours’ notice in writing, without paying
compensation and without prejudicing its right to obtain payment for water supplied
to the consumer, discontinue the supply to the consumer–
(a) if he shall have failed to pay any sum which in the opinion of the Council
is due under these conditions or the Water Bye-laws;
(b) ….;
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(c) ….;
(d) …. .”

The inclusion of this provision in the standard form contract as opposed to the

Bye-laws is an issue that appears to have escaped both parties as well as the court a quo in

their continual references to the Bye-laws without regard to the contract annexed thereto.

Nevertheless, in terms of clause 1 of the contract:

“The Bye-laws and Regulations of the Council from time to time applicable to the
supply of water shall be deemed to be incorporated in and form part of this
agreement.”

Thus, the Bye-laws and the contract must properly be read together as a single

composite instrument. Consequently, I do not think that the distinction between them is of

any particular significance in determining the grounds of appeal herein.

The original 1913 Bye-laws were framed under the provisions of s 19 of the

Salisbury Water and Electricity Supply and Loan Ordinance 1911 (No. 10 of 1911). That

section, in its relevant portions, provided as follows:

“The Council may from time to time make, alter and revoke bye-laws for all or any
of the following purposes in connection with the supply or use of water from the
Council’s or their authorised contractors’ works or anything incidental or relating
thereto, namely :-
(1) ….;
(2) ….;
(3) ….;
(4) as to ordinary and extraordinary supply and agreements relating thereto,
and tariff of charges or fees;
(5) ….;
(6) as to fixing and using of meters or anything relating thereto;
(7) ….;
(8) and generally for the good government and control of the works and the
supply and use of water in the Municipality and any additional
municipal area.”
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I note that the power to cut off water for non-payment was expressly catered

for in s 16 of the Ordinance itself, albeit in terms less compulsive than those stipulated in

the standard contract. It allowed the consumer concerned a period of one week after lawful

demand to pay the sum due before disconnection could be effected.

Notice of Disconnection

In his heads of argument and at the hearing of the appeal, Mr Mpofu, for the

respondent, raised the point that the appellant had given notice of its intention to disconnect

on the same day that it actually disconnected the respondent’s water supply, before the

expiry of 24 hours and in clear breach of the prescribed period of notice. Mr Girach, for

the appellant, contends that the invoices sent to the respondent specifically indicate that

“Water supplies may be disconnected without further notice if this account remains unpaid

after due date”. Since the stated due date is approximately three weeks after the billing

date, it cannot be said that the requisite notice was not given. This contention finds some

support in s 49 of the Bye-laws (as amended by s 2 of S.I. 489/1952) which provides that:

“Every account …. shall become due and payable on the date stated therein and the
service of such account …. shall constitute notice that the supply of water may be
cut off if payment is not made on or before such date.” (The emphasis is mine).

Notwithstanding this provision, I take the view that the argument proffered

by Mr Girach is unsustainable. The threat of possible disconnection for non-payment by

due date contained in the appellant’s invoices is nothing more than a standard warning

reiterated in every monthly rates statement sent out to owners or occupiers of property

generally. It is obviously not the same as the very specific “twenty-four hours’ notice in
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writing” of impending and imminent disconnection, stipulated under clause 8(a) of the

standard contract, for non-payment of sums previously invoiced and already due.

The respondent’s averment that his water supply was disconnected on the

same day as the day on which the notice of disconnection was received does not appear to

have been disputed by the appellant. If that averment is correct, it would follow that the

appellant’s conduct was unlawful, but for reasons entirely different from those grounding

the respondent’s claim of spoliation and the decision of the court a quo in that particular

respect. That being the case, I do not agree with Mr Mpofu’s submission that the appellant’s

failure to give the requisite notice of disconnection, if it is proven, affords a proper basis

for dismissing the entire appeal, which has been mounted on other substantive grounds

specifically addressed and determined by the court a quo. In any event, I take the view that

those grounds relate to matters of considerable public importance warranting their

comprehensive adjudication by this Court. This is particularly so as there are several extant

decisions of the High Court with divergent findings and conclusions on the legality of water

disconnections by municipal authorities.

Propriety of Interim Relief Granted

Mr Girach submits that the grant of an interdict or spoliation order requires the

establishment of a clear right. The case before the High Court involved a dispute of fact as

to whether or not the respondent’s water bill was due. All that the respondent did was to

dispute the amount due as an excuse for refusing to pay the bill. The appellant consistently

disputed any linkage to the bulk meter and contended that the water charges levied were
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not unlawful. Therefore, there was no proper legal basis for the provisional order granted

a quo, which order also sets a dangerous precedent for the provision of utility supplies

generally.

I agree with Mr Girach that the papers filed before the court a quo indicate an

absence of clarity as to the status of the bulk supply meter. On the other hand, I am also

persuaded by Mr Mpofu that this issue is of negligible relevance in casu. The uncontested

factual position is that the respondent had regularly paid his bills on time and had constantly

called upon the appellant to regularise his account after being billed for usage recorded on

the bulk meter. Despite promises to look into the matter, the appellant did nothing to assist

but proceeded to bill the respondent and eventually disconnected his water supply. In short,

the respondent made all efforts to show that his bill was incorrect and not due, but to no

avail.

Furthermore, I am unable to accept the argument that the decision of the court

below sets any dangerous precedent with the ensuing likelihood of chaos in the provision

of utility services generally. The facts of this case are distinctive and peculiar to the

circumstances of the respondent in his dealings with the appellant. In the event, I am

satisfied that the respondent had established a sufficiently clear right entitling him to the

interdictory and spoliatory relief granted by the court a quo.

Turning to the specific terms of the provisional order granted by the court a

quo, Mr Girach submits that the interim relief granted pending the determination of the

matter is the same as the final relief sought by the respondent. Moreover, it consists of a
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mandamus coupled with an interdict and is final and definitive in effect, thereby rendering

moot any further determination on the return date.

The interim relief granted ordered the appellant to immediately restore water

supply to the respondent’s premises, and interdicted the appellant from interfering with the

respondent’s possession of the premises by interfering with or terminating his water supply.

The final order sought declared the termination of the respondent’s water supply on the

basis of a disputed water bill in the absence of a court order to be unlawful self-help, and

interdicted the appellant from interfering with, disrupting or terminating the respondent’s

water supply without a court order.

At first glance, the terms of the interim relief granted and the final order

sought appear to be substantially similar. On closer scrutiny, however, I am able to discern

certain critical differences in both the wording and effect of the two orders. In particular,

paragraph 1 of the interim relief was designed to restore the status quo ante; paragraph 1

of the final order is essentially declaratory of the alleged unlawfulness of the appellant’s

conduct in the absence of a court order. Again, paragraph 2 of the interim relief granted

interdicts the appellant from any interference pending the finalisation of the matter;

paragraph 2 of the final order restrains the appellant from interference without the authority

of a court order.

Given these significant distinctions, I take the view that what is sought in

the final order on the return date is materially different from what was granted by way of
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interim relief by the court a quo. Furthermore, I am unable to perceive any categoric finality

or definitiveness in the terms or effect of the interim relief granted. It does not preclude the

appellant from expediting the proceedings and resisting the confirmation of the provisional

order on the return date. In particular, it leaves ample leeway for the appellant to argue the

merits of its case on the premise that the absence of a court order does not ipso facto negate

its right to disconnect water supplies in order to enforce payments due for water supplied

to its consumers.

The Relevant Enabling Act

At the hearing of the matter, Mr Girach raised the entirely new argument

that the enabling law for present purposes was the Ordinance of 1911 and not the Urban

Councils Act [Chapter 29:15]. Therefore, para 69(2)(e) of the Third Schedule to the Act

could not be applied, as was done by the court below, to render the Bye-laws ultra vires.

In response, and being quite justifiably aggrieved, Mr Mpofu countered that this argument

was highly improper in light of argument to the contrary advanced and dealt with a quo as

well as the thrust of the grounds of appeal and heads of argument filed before this Court.

I entirely agree with Mr Mpofu that this fresh attack on the judgment

appealed against is entirely improper and should not ordinarily be entertained. Be that as it

may, it is abundantly clear that Mr Girach has completely misapprehended the legislative

history of the Urban Councils Act as well as established legislative practice in the treatment

of existing delegated legislation.

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The original Ordinance No. 10 of 1911, as amended, remained in force and

operational until 1963 when it was converted into an Act of Parliament, titled the Salisbury

Water and Electricity Supply and Loan Act [Chapter 132]. Thereafter, in 1974, this Act

was repealed by the Urban Councils Act [Chapter 214]. However, in terms of the savings

provision incorporated in the latter Act, i.e. s 270, all by-laws or regulations made under

any repealed Act were to continue in force as though they were made under the repealing

Act. Eventually, Chapter 214 was repealed and replaced, in the 1996 Revised Edition of

Statutes, by the Urban Councils Act [Chapter 29:15]. Once again, pre-existing subsidiary

legislation was saved by virtue of s 321 of that Act which sets out its savings and

transitional provisions. With specific reference to by-laws, s 321(1)(d) now provides that:

“any by-laws which were made or continued in force under the repealed Act and
which were in force immediately before the date of commencement of this Act shall
continue in force as though they were, and shall be deemed to be, by-laws, made
under the appropriate provisions of this Act and may be amended or repealed as
though they had been so made;”.

What emerges plainly and clearly from the foregoing is that the 1913 Bye-

laws, having been made under the 1911 Ordinance but having continued and remained in

force under the successive replacement Acts of 1963, 1974 and 1996, now continue in force

as though they were made under Chapter 29:15. It follows that the validity of the 1913

Bye-laws stands to be examined and affirmed or negatived by reference to the enabling

provisions of the current Urban Councils Act.

Reasonableness of Delegated Legislation

One of the fundamental tenets of administrative law is that delegated

legislation, including by-laws, may be reviewed and set aside on the ground of
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unreasonableness. This is the settled position not only in England, particularly after the

famous case of Kruse v Johnson [1898] 2 QB 91, but also, albeit somewhat less

consistently, under Roman-Dutch law. See generally Baxter: Administrative Law, at pp.

478-482. As observed by the learned author, “unreasonableness has always been a ground

for review of delegated legislation but it was not until Kruse v Johnson that the concept

was given an identifiable and specific meaning”.

Kruse v Johnson concerned the validity of a by-law prohibiting any person

from playing music or singing in any public place or highway within fifty yards of any

dwelling-house after being requested by any constable, or an inmate of such house or his

or her servant, to desist. The case was heard and determined by a specially constituted

bench of seven judges appointed by the Chief Justice. It was held, with one dissenting

opinion, that the by-law was valid. Lord Russell CJ, delivering the majority judgment of

the court, opined as follows, at 99-100:

“In this class of case it is right that the Courts should jealously watch the exercise
of these powers, and guard against their unnecessary or unreasonable exercise to
the public disadvantage. But, when the Court is called upon to consider the by-laws
of public representative bodies clothed with the ample authority which I have
described, and exercising that authority accompanied by the checks and safeguards
which have been mentioned, I think the consideration of such by-laws ought to be
approached from a different standpoint. They ought to be supported if possible.
They ought to be, as has been said, ‘benevolently’ interpreted, and credit ought to
be given to those who have to administer them that they will be reasonably
administered. This involves the introduction of no new canon of construction. But,
further, looking to the character of the body legislating under the delegated
authority of Parliament, to the subject-matter of such legislation, and to the nature
and extent of the authority given to deal with matters which concern them, and in
the manner which to them shall seem meet, I think courts of justice ought to be slow
to condemn as invalid any by-law, so made under such conditions, on the ground
of supposed unreasonableness. ….. I do not mean to say that there may not be cases
in which it would be the duty of the Court to condemn by-laws, made under such
authority as these were made, as invalid because unreasonable. But unreasonable
in what sense? If, for instance, they were found to be partial and unequal in their
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operation as between different classes; if they were manifestly unjust; if they

disclosed bad faith; if they involved such oppressive or gratuitous interference with
the rights of those subject to them as could find no justification in the minds of
reasonable men, the Court might well say, ‘Parliament never intended to give
authority to make such rules; they are unreasonable and ultra vires.’ But it is in this
sense, and in this sense only, as I conceive, that the question of unreasonableness
can be properly regarded. A by-law is not unreasonable merely because particular
judges may think that it goes further than is prudent or necessary or convenient, or
because it is not accompanied by a qualification or an exception which some judges
may think ought to be there.“

There are four clear rules of interpretation that emerge from this celebrated

passage. Firstly, because of the representative nature of municipal bodies and the delegated

authority that they administer, by-laws enacted by such bodies ought to be benevolently

construed and supported if possible. Secondly, it is to be presumed that such by-laws will

be reasonably administered by the authority responsible for administering them. Thirdly,

courts of law should exercise great caution in questioning the validity of by-laws and

should be slow to strike them down as being invalid on the ground of unreasonableness.

And, fourthly, where the criterion of reasonableness is to be applied to any by-law, it should

only be condemned if it is objectively found to be grossly unreasonable.

The concept of unreasonableness in relation to by-laws is similar to the

equivalent Wednesbury principle, as applied in judicial review of administrative action. It

was further elucidated by Diplock LJ in Mixnam’s Properties Ltd v Chertsey UDC [1964]

1 QB 214, at 237, as follows:

“…. the kind of unreasonableness which invalidates a by-law is not the antonym of
‘reasonableness’ in the sense in which the expression is used in the common law,
but such manifest arbitrariness, injustice or partiality that a court would say:
‘Parliament never intended to give authority to make such rules; they are
unreasonable and ultra vires’ …. .”
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Kruse v Johnson has been perennially affirmed and applied in our courts in

adjudicating the validity of by-laws and other delegated legislation. See, for instance, City

of Salisbury v Mehta 1962 (1) SA 675 (FC) at 678, 689, 692; S v Nyamapfukudza 1983 (2)

ZLR 43 (SC) at 46; Patriotic Front – Zimbabwe African People’s Union v Minister of

Justice, Legal & Parliamentary Affairs 1985 (1) ZLR 305 (SC) at 323, 325, 330, 332; S v

Delta Consolidated (Pvt) Ltd & Ors 1991 (2) ZLR 234 (SC) at 238. I entertain no doubt

that the rules enunciated in that case continue to retain their soundness and

authoritativeness in the present context.

As regards the need to exercise benevolence in the construction and

application of by-laws, it was observed by Cozens-Hardy MR in the case of Williams v

Weston-super-Mare UDC (No. 2) (1910) 103 LT 9, at 11, that the courts:

“ought to assume, and assume strongly, that the local authority is exercising their
duty honestly and doing their best for the benefit of the locality; they being
entrusted by Parliament with powers for that express purpose.”

The need for judicial restraint in the administrative realm is also captured

in the maxim omnia praesumuntur rite et solemniter esse acta. It is trite that every

enactment by implication imports the principle underlying this maxim. See Bennion:

Statutory Interpretation, at pp. 782-783. The maxim establishes the presumption that an

enactment or delegated legislation is properly passed or correctly made, until the contrary

is proved. As applied to the exercise of official or administrative functions, it must be

presumed that the powers conferred will be fairly and reasonably administered and will not

be abused.
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It is also apposite to heed the remarks of Murray CJ in R v Jeremiah 1956

(1) SA 8 (SR) at 11:

“It might be contended, as counsel suggested, that the problem of dealing with these
cases of unavoidable or justifiable 'standing or waiting' can be solved by relying on
the discretion of the administrators of the bye-law to avoid the extreme and
unreasonable results of a literal construction of the bye-law by refraining from
enforcing it by prosecution in these cases of hardship. This has, however been
decided in Amoils v Johannesburg City Council, 1943 T.P.D. 386 at p. 390, not to
be the proper solution. The duty of the Court, according to that decision, is to
endeavour, in its duty to give a benevolent interpretation to the bye-laws of a local
authority by upholding them as far as is possible (vide Kruse v Johnson, supra; R v
Pretoria Timber Co. (Pty.), Ltd., & Another, 1950 (3) SA 163 at p. 170 (A.D.)), to
ascertain if there are not two reasonably possible interpretations of the bye-law. If
there are two, and one of them produces, while the other avoids, unreasonable and
harsh results, then the bye-law will be upheld by giving it the second construction.
Needless to say, if the bye-law is incapable of any construction, other than that
which produces unreasonable results, it cannot be saved and must be held to be
ultra vires.”

In the context of the broad powers of review exercisable by the courts,

Bennion (op. cit.), at p. 144, opines that:

“The operation of the doctrine of ultra vires is wider in relation to byelaws than
statutory instruments. …. This is because in relation to byelaws the courts regard
themselves as entitled to examine not only the scope of the power but the
reasonableness of its exercise”.

The learned author also affirms, at pp. 144-145, that the courts have the

power to sever a provision which is ultra vires from the rest of the instrument or to set

aside and disregard the invalid part, leaving the rest intact, unless the former is inextricably

interconnected with the valid part. However, this does not necessarily entail “judicial

surgery or textual emendation by excision”. He accordingly concludes, at p. 145:

“…. the judicial process involved is not truly ‘severance’ but ‘modification’. The
court has the power to modify the wording of an item of delegated legislation so as
to leave it without any ultra vires effect. The only limit on the power is that it cannot
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be used to produce an instrument the overall effect of which the delegate, if made
aware of the ultra vires point at the time of making the instrument, would or might
not have approved.”

Insofar as concerns the exercise of any power or discretion conferred by any

enactment, it is axiomatic that the functionary invested with the power to act or decide

must comply with such rules of natural justice as are appropriate to the function to be

performed as well as the time and circumstance in question. The two basic requirements in

this regard enjoin the functionary concerned to decide without bias and to allow

representations to be made before the decision is reached or any consequential action is

taken. These basic tenets, as derived from the common law and embodied in the maxims

nemo debet esse judex in sua aut propria causa and audi alteram partem, are now codified

in s 3 of the Administrative Justice Act [Chapter 10:28] and reaffirmed in s 68 of the

Constitution.

Whether Bye-laws are Ultra Vires the Enabling Act

As I have indicated earlier, the court a quo found clause 8(a) of the standard

form contract (scheduled to the 1913 Bye-laws) to be ultra vires para 69(2)(e) of the Third

Schedule to the Urban Councils Act [Chapter 29:15], notwithstanding the broad powers of

enforcement conferred upon urban councils by subs(3) of s 198 of the same Act. (In order

to address the erroneous conflation resorted to by the parties and the court a quo that I have

already alluded to, and for the sake of brevity and convenience, I shall refer to the Bye-

laws as encompassing the standard contract annexed thereto, except where it is necessary

to refer to the contract specifically).

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Section 198 of the Act delineates the general powers of urban councils, and

subs (3) provides that:

“Subject to this Act, a council shall have power to do any act or thing which, in the
opinion of the council, is necessary for administering or giving effect to any by-
laws of the council.”

The Third Schedule to the Act prescribes the matters in respect of which

urban councils may make by-laws. Paragraph 69 of that Schedule, in its relevant portions,

reads as follows:

“(1) The regulation and rationing of the supply and distribution of water.
(2) Without derogation from the generality of subparagraph (1), by-laws relating
to matters referred to in that subparagraph may contain provision for all or any of
the following—
(a) ….;
(b) ….;
(c) ….;
(d) ….;
(e) cutting off the supply of water, after not less than twenty-four hours’
notice, on account of -
(i) failure to pay any charges which are due; or
(ii) the contravention of any by-laws relating to waste, misuse or
contamination of water;
(f) ….;
(g) ….;
(h) fixing the duties of consumers in respect of meters and the settlement of
disputes as to the amount of water supplied or the tariff
applicable.”

In its judgment, the court a quo reasoned that the appellant could not rely

on the Bye-Laws, as read with s 198(3) of the Act, for its purported claim to disconnect

water supplies. This was because s 198(3) is subject to para 69(2)(e) of the Schedule which

deliberately omits the words “in the opinion of the Council”, thus divesting the appellant

of any unfettered discretion in the matter and rendering invalid the Bye-laws in question.
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The appellant could therefore only disconnect water supplies upon proof of failure to pay

by due process or recourse to the courts.

While these conclusions are not entirely untenable, the approach adopted

by the learned judge is, with great respect, somewhat narrow and unilinear. It overlooks

several well-established canons of statutory interpretation which enjoin, inter alia, that the

provisions of a statute must be construed not in isolation but as a unitary whole and in a

purposive manner having regard to the overall objects of the statute.

Section 198(3) of the Act, in my view, is a broad enabling provision which

empowers every urban council to do whatever it deems necessary to administer or

effectuate its by-laws. The Third Schedule enumerates the myriad matters in respect of

which a council may make by-laws. Paragraph 69 of that Schedule confers the power to

make by-laws specifically for the purpose of regulating and rationing the supply and

distribution of water. Although the powers exercisable under s 198(3) are “subject to this

Act”, I do not consider them to be necessarily subservient to the essentially permissive

provisions of the Third Schedule. Those provisions are designed to categorise the broad

range of by-laws that may be enacted. They do not per se circumscribe or curtail the powers

deemed necessary or expedient to enforce such by-laws. In short, s 198(3) is to be read

consistently with para 69 of the Third Schedule in a manner that attains rather than defeats

the overriding objectives of good governance and just administration.

This leads me to what I regard to be the critical issue for consideration in

this matter, to wit, the scope and application of the words “in the opinion of the council”
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as contained in s 198(3) of the Act and clause 8(a) of the standard form contract annexed

to the 1913 Bye-Laws. Can these words be construed and applied in a manner that conforms

with the Act and the applicable precepts of reasonableness or do they vitiate clause 8(a) so

as to render it ultra vires in its entirety?

Mr Girach contends that clause 8(a) is reasonable when taken in its context. If

consumers were allowed to refuse to pay their water bills simply by disputing them, it

would result in administrative chaos. It would be impractical from a debt management and

solvency standpoint in a commercial context. Although para 69(2)(e) of the Third Schedule

relates to charges which are due, it does not require that a court order must be obtained to

warrant the disconnection of water supply. As against this, Mr Mpofu submits that clause

8(a) must be construed and applied reasonably so as to justify disconnection only in respect

of non-payment of charges which are actually due. If this is not possible, the clause must

be regarded as being ultra vires para 69(2)(e) of the Third Schedule.

I now turn to consider the relevant provisions of the 1913 Bye-laws in order to

assess their reasonableness or otherwise in accordance with the governing principles that I

have elaborated above.

I have already adverted to s 49 of the Bye-laws relating to the computation of

the amount of water supplied to any consumer and the payment of charges incurred

therefor. The section as amended provides as follows:

“The quantity of water which shall be registered by the meter as having been
supplied to any consumer shall be deemed to be the quantity actually so supplied.
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The quantity of water so registered shall be paid for by such consumer at the rate
or charge for the time being fixed by the tariff of the Council for water supplied by
measure. Every account for the supply so registered shall become due and payable
on the date stated therein and the service of such account in terms of section 61 of
these regulations [sic] shall constitute notice that the supply of water may be cut off
if payment is not made on or before such date.”

The possible disputation of meter readings and charges due is regulated by

ss 50, 51 and 52 of the Bye-laws. In their relevant portions, they read as follows:

“50. Every consumer shall be bound by the entry in the books of the Council
shewing such meter reading, in the absence of evidence shewing either that such
entry has been incorrectly made or that the meter was at the time of such a reading
in default, and it shall not be necessary to produce the person who read the meter
or the person who made any particular entry in order to prove such reading or
entry.”

“51. (1) If any consumer is dissatisfied with any particular reading of a meter
supplied by the council, and is desirous of having such meter tested, he shall give
written notice to the council within seven days of receipt of his account, and shall
deposit with the council such sum as it may from time to time fix …., and thereupon
the meter shall be tested by the council.
(2) If, on being tested in terms of subsection (1), a meter is found to be –
(a) correct, the consumer shall forfeit to the council the sum which he
deposited in terms of subsection (1);
(b) incorrect, the council shall install a new meter and refund the sum
deposited to the consumer.
(3) …. .”

“52. Should the meter at any time be out of order and register incorrectly, the
Council will repair or replace the same as soon as possible, and the quantity of
water to be paid for by the consumer from the date of the meter ceasing to register
correctly up to the time of the repair or replacement shall be estimated by the
Council upon the basis of the previous consumption of water upon such premises,
or in the event of such an estimate being impossible, upon the basis of the
subsequent consumption after such repair or replacement has been effected. …. .”

The giving of any notice to a consumer under the Bye-laws is provided for

in s 61 which reads as follows:

“Where any notice is required by these Bye-laws to be served on or given to any

person it shall be served personally on such person or left at or served by post to
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his last usual place of abode or business, and if served by post shall be deemed to
have been served at the time when the letter containing the same would be delivered
in the ordinary course of post, and in proving such service it shall be sufficient to
prove that the notice, order or other document was properly addressed and put into
the post, and in case any such person shall be absent from the Territory any such
notice may be served on any agent of such person known to the Council.”

It is apparent that none of the provisions of the Bye-laws cited above was

addressed or ventilated in the proceedings a quo. Yet they are critical in evaluating the

validity of clause 8(a) of the standard form contract. This clause cannot be taken in isolation

but must be considered within the entire context in which it appears.

The prescribed accounting, payment and disconnection process

contemplated under the Bye-laws is as follows. The process begins with the presentation

of an account based on the quantity of water registered on the relevant meter as having

been supplied. The account must be delivered at or posted to the consumer’s usual place of

abode or business. The account also serves as notice of possible disconnection in the event

that it is not paid by the due date.

Should the consumer wish to question or dispute the account so received,

he is entitled to demand that the meter be tested, by giving written notice to the Council

within seven days of receipt of his account and paying the deposit fixed by the Council.

The latter is then obligated to test the meter. If the meter is found to be correct, the

consumer forfeits the deposit that he has paid. If the meter is found to be incorrect, the

Council must install a new meter and refund the sum deposited.
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Quite apart from the above scenario, where a meter is found to be out of

order or incorrect at any time, the Council must repair or replace the meter as soon as

possible. The quantity of water to be paid for by the consumer concerned is then estimated

on the basis of his previous or subsequent consumption, depending on the circumstances

of each case.

In either scenario, the power conferred upon the Council to disconnect water

supply upon 24 hours’ written notice may only be invoked as the final resort. Furthermore,

the opinion of the Council as to whether the consumer has failed to pay any sum due is not

purely subjective. It is qualified and conditioned by the prior delivery of an account and

the possibility of that account being challenged by the consumer and then rectified if the

meter in question is found to be faulty or defective. In short, the Bye-laws provide for a

dispute resolution mechanism that precedes the possible penalty of disconnection. Thus,

the process, taken as a whole, is entirely consistent with the requirements of para 69 of the

Third Schedule to the Act insofar as that provision delineates the parameters for framing

by-laws regulating the supply and disconnection of water.

Moving on to the question of reasonableness, the authorities cited above

postulate that the delegated legislation that is impugned must be accorded a benevolent

construction to the extent that this is possible. Additionally, it must be presumed that the

legislation concerned will be administered by the relevant functionaries in a reasonable

manner.
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Having regard to these interpretive principles, it seems to me that this Court

is at large to presume that the Council will exercise its discretion reasonably, not only in

forming its opinion as to whether or not the consumer in question is in default with any

sum due but also with respect to the attendant power to disconnect water supply to that

consumer. I am fortified in this position by the existence of the dispute settlement process

embodied in the Bye-laws, which process entitles the consumer to challenge the accuracy

of meter readings and the consequent computation of his account. I am also satisfied that

this process is largely consonant with the governing tenets of natural justice insofar as they

dictate the absence of bias and an opportunity to make the requisite representations.

Lastly, I am guided by the cardinal rule that the courts must exercise great

caution in striking down delegated legislation. They should only intervene if that legislation

is found to be objectively grossly unreasonable, viz. manifestly unequal, unjust, arbitrary

or oppressive. In the present context, I am unable to discern any such grossly unreasonable

feature in the operation or application of the Bye-laws under scrutiny. In the final analysis,

I take the view that the 1913 Bye-laws, regarded as a whole, are not only compliant with

and intra vires the enabling provisions of the Urban Councils Act but also perfectly

concordant with the overarching notions of reasonableness.

Whether Bye-laws are Unconstitutional

In the context of a constitutional framework within which the right to water

is not explicitly articulated, the right is often subsumed under the broader rubric of the

fundamental right to a clean and healthy environment and sustainable development implicit
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in the right to life. The right to fresh air, clean water and a pollution-free environment is

perceived to derive from the inalienable common law right to a clean environment. See,

for instance, the decisions of the Supreme Court of India in Vellore Citizens Welfare Forum

v Union of India (1996) 5 SCC 647 and Narmada Bachao Andolan v Union of India (2000)

10 SCC 664.

In South Africa, s 27 of the Constitution expressly provides for a right to

have access to health care, food, sufficient water and social security. Insofar as concerns

water, s 27(1)(a) dictates that “everyone has the right to have access to …. sufficient ….

water”, while s 27(2) enjoins the State to “take reasonable legislative and other measures,

within its available resources, to achieve the progressive realisation” of this right.

According to N. Gabru: Some Comments on Water Rights in South Africa

PER/PELJ 2005 Vol. 8 No. 1, at pp. 12-14, the nature of the obligation imposed by s 27 is

not unqualified so as to impose any duty on the State to provide water on demand. The

reference to “access” rather than the “right” to water means that the State’s duty is limited

to only those sections of the population without the means to ensure access to health care,

food, water and social security. Those who have the means already have access to those

essentials, since they can afford it, and therefore cannot claim it from the State.

Additionally, there is no explicit guidance in the Constitution itself as to the meaning of

“sufficient” food and water, i.e. as to the quantity and quality of water that each individual

is entitled to access. Sufficient food and water must therefore be measured in terms of an

adequate standard of living, which in turn is linked to the necessities of life in accordance
 Judgment No. SC 54/2018
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with the prevailing cost and standard of living in the country concerned. Thus, the

availability of access to food and water depends upon the availability of the resources at

the disposal of the State. The learned author further notes, quite correctly, that fundamental

rights and freedoms are not absolute, their boundaries being demarcated by the rights of

others and by the legitimate needs of society.

In the case of Mazibuko & Others v City of Johannesburg & Others [2009]

ZACC 28 [2010 (4) SA 1] the Constitutional Court of South Africa was seized with an

appeal from the Supreme Court of Appeal upholding the decision of the Johannesburg High

Court. The High Court had found that the prepayment water system used in the township

concerned was unconstitutional and unlawful. It ordered the City to provide free basic

water supply of 50 litres per person per day and the option of a metered supply to be

installed at the City’s expense. On appeal to the Supreme Court of Appeal, it was held that

the quantity of water required for dignified human existence in compliance with s 27 of the

Constitution was 42 litres per person per day. The court also concluded that the City had

no authority in law to install prepaid meters and that the disconnection of water supply,

once the free basic water limit had been exhausted, constituted an unlawful discontinuation

of water supply.

On further appeal and cross-appeal, the Constitutional Court set aside the

orders made by both the High Court and the Supreme Court of Appeal. The court adopted

a more robust and practical approach to the realisation of social and economic rights

generally. It is instructive to set out the reasoning of the court at length in order to illustrate
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the modalities for the progressive implementation of the right to water and other rights of

the same genus. To quote O’Regan J, with whose pragmatic approach I respectfully concur:

“…. section 27(1) and (2) of the Constitution must be read together to delineate the
scope of the positive obligation to provide access to sufficient water imposed upon
the state. That obligation requires the state to take reasonable legislative and other
measures progressively to achieve the right of access to sufficient water within
available resources. It does not confer a right to claim “sufficient water” from the
state immediately.
…. The fact that the state must take steps progressively to realise the right implicitly
recognises that the right of access to sufficient water cannot be achieved
immediately. That the Constitution should recognise this is not surprising.
At the time the Constitution was adopted, millions of South Africans did not have
access to the basic necessities of life, including water. The purpose of the
constitutional entrenchment of social and economic rights was thus to ensure that
the state continue to take reasonable legislative and other measures progressively
to achieve the realisation of the rights to the basic necessities of life. It was not
expected, nor could it have been, that the state would be able to furnish citizens
immediately with all the basic necessities of life.“ [at paras. 57, 58 and 59]

“Moreover, what the right requires will vary over time and context. Fixing a
quantified content might, in a rigid and counter-productive manner, prevent an
analysis of context. The concept of reasonableness places context at the centre of
the enquiry and permits an assessment of context to determine whether a
government programme is indeed reasonable.
Secondly, ordinarily it is institutionally inappropriate for a court to determine
precisely what the achievement of any particular social and economic right entails
and what steps government should take to ensure the progressive realisation of the
right. This is a matter, in the first place, for the legislature and executive, the
institutions of government best placed to investigate social conditions in the light
of available budgets and to determine what targets are achievable in relation to
social and economic rights. Indeed, it is desirable as a matter of democratic
accountability that they should do so for it is their programmes and promises that
are subjected to democratic popular choice.“ [at paras. 60 and 61]

“The Constitution envisages that legislative and other measures will be the primary
instrument for the achievement of social and economic rights. Thus it places a
positive obligation upon the state to respond to the basic social and economic needs
of the people by adopting reasonable legislative and other measures. By adopting
such measures, the rights set out in the Constitution acquire content, and that
content is subject to the constitutional standard of reasonableness.
Thus the positive obligations imposed upon government by the social and economic
rights in our Constitution will be enforced by courts in at least the following ways.
If government takes no steps to realise the rights, the courts will require government
to take steps. If government’s adopted measures are unreasonable, the courts will
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similarly require that they be reviewed so as to meet the constitutional standard of

reasonableness. …. Finally, the obligation of progressive realisation imposes a duty
upon government continually to review its policies to ensure that the achievement
of the right is progressively realised.“ [at paras. 66 and 67]

“…. What is clear from the discussion above is that the City is not under a
constitutional obligation to provide any particular amount of free water to citizens
per month. It is under a duty to take reasonable measures progressively to realise
the achievement of the right.” [at para. 85]

“I have thus concluded that neither the Free Basic Water policy nor the introduction
of pre-paid water meters constitutes a breach of section 27 of the Constitution.” [at
para. 169]

Section 77 of the Constitution of Zimbabwe is framed in words that are almost

identical to those used in its South African counterpart. It encapsulates the right to food

and water in the following terms:

“Every person has the right to—

(a) safe, clean and potable water; and
(b) sufficient food;
and the State must take reasonable legislative and other measures, within the limits
of the resources available to it, to achieve the progressive realisation of this right.”

Mr Girach submits that s 77 must be read with s 86 of the Constitution. He

argues that no right is absolute and that every right must be exercised reasonably and with

due regard to the rights of others. Rights come with responsibilities and obligations and

there can be no right to water without paying for the cost of supplying it. In any event, the

impugned Bye-laws are necessary for planned urban administration and are also fair and

reasonable in a democratic society. Mr Mpofu counters that s 77 of the Constitution

obligates the appellant to provide clean and potable water. To the extent that the Bye-laws

allow the appellant to act arbitrarily, they must be regarded as impeding the progressive

realisation of the constitutional right to water.

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The first point to note about s 77 of the Constitution is that it is a

fundamental human right enshrined in Part 2 of the Declaration of Rights. As such, it is

directly enforceable in terms of s 85 of the Constitution if it has been, is being or is likely

to be infringed. Nevertheless, being in the nature of a social right, I do not think that it is

susceptible to unqualified application and enforcement. This emerges clearly from the

wording of the section itself.

What the State is enjoined to do is to take reasonable legislative and other

measures to achieve the progressive realisation of the rights to sufficient food and potable

water. Moreover, its obligations in this regard are confined to measures within the limits

of the resources available to it. In light of the relatively inchoate and somewhat nebulous

scope of the rights conferred and the concomitant obligations imposed, I am inclined to

regard s 77 as being essentially policy-oriented and hortatory in nature. This is not to render

the provision entirely nugatory but rather to recognise that the extent of its practical

enforceability is not necessarily self-evident in every circumstance.

My reading of s 77 of the Constitution is that the possible violation of its

provisions is only implicated where the State or a local authority fails to provide any or

adequate water supply to any given community or locality. It might also arise where, as

appears to have been recently admitted by the appellant itself, having afforded an adequate

water supply to most inhabitants, it is then discovered that such supply is in fact

contaminated and therefore only potable at great risk. In contrast, it is difficult to envisage

how the broad import of s 77 might be invoked in the case of a consumer, who has full or
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adequate access to water supply, but is deprived thereof by being disconnected for having

failed to pay for water consumed and after having received due notice and warning to settle

his account.

Even assuming that my overall construction of s 77 is flawed, I have no

doubt that the powers conferred by the Bye-laws in casu can be appropriately scrutinised

and evaluated to ensure that they comply with and do not infringe the requirements of s 77,

no matter how imprecise and ill-defined those requirements may be. Having regard to my

earlier assessment of the processes embodied in the Bye-laws pertaining to the supply of

water, I take the view that the power to disconnect water supply exercisable by the Council

is eminently reasonable and does not in any way contravene s 77 of the Constitution.

Bearing in mind the enormous economic and budgetary considerations that

would ordinarily arise in the provision of safe and clean water to a large populace, it cannot

be said that the disconnection of water supply by reason of non-payment for water

consumed in any specific instance constitutes an infringement of the constitutional right to

water. Indeed, it may be necessary to do so to ensure that the majority of non-defaulting

consumers continue to enjoy their respective rights to water. In other words, the power to

disconnect the water supply of any individual consumer in the manner prescribed is a

necessary incident of the measures necessary to safeguard the rights of other consumers at

large. This approach accords squarely with the dictates of s 86(1) of the Constitution, to

wit, that fundamental rights and freedoms must be exercised reasonably and with due

regard for the rights and freedoms of others.

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In the premises, I am of the considered opinion that the application and

enforcement of the 1913 Bye-laws do not negate or impede the progressive realisation of

the right to safe, clean and potable water as envisaged by s 77 of the Constitution. Having

concluded that there is no contravention of s 77, it becomes unnecessary to delve into the

question as to whether the Bye-laws constitute a limitation that is fair, reasonable,

necessary and justifiable in a democratic society within the contemplation of s 86(2) of the

Constitution.

Disposition

The particular facts of this case, insofar as they relate to the respondent himself,

indicate that the appellant probably did not give him the requisite 24 hours written notice

prior to disconnecting his water supply. On that basis, the appellant’s conduct would have

been unlawful, but for reasons different from those founding the respondent’s cause of

action. In any event, I am satisfied that the respondent did establish a sufficiently clear right

entitling him to the interdictory and spoliatory relief granted by the court a quo. I also agree

with the respondent’s position that the interim order granted below is materially different

from the final order sought on the return date and that it is not categorically definitive in

its terms or effect.

Turning to the larger issues apropos the validity of the impugned 1913 Bye-

laws, I take the view that their provisions, construed in their entirety, are not only

reasonable in their operation but also intra vires the enabling provisions of the Urban

Councils Act. Furthermore, I am not persuaded by the respondent’s contention that the
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Bye-laws are incompatible with the right to water enshrined in s 77 of the Constitution.

Thus, the appellant’s power to disconnect water supplies for non-payment of water

accounts, provided it is reasonably applied and enforced, and exercised in strict compliance

with the conditions prescribed in the Bye-laws, is both statutorily and constitutionally

unimpeachable.

It follows from the foregoing that the appeal fails in relation to the specific

interim relief granted by the court a quo in favour of the respondent, but succeeds in

establishing the overall legality of the Bye-laws relied upon by the appellant. For this

reason, I think it just and equitable that neither party should be penalised with the costs of

this appeal or the costs a quo.

As regards the provisional order granted by the court a quo, the terms of the

final order sought are obviously problematic and insupportable to the extent that they

contemplate the authority of a court order as a prerequisite for the discontinuation of water

supply in every instance. As for the interim relief granted, this has been overtaken by events

and rendered otiose inasmuch as the respondent is no longer in occupation of the premises

in question. In the event, the provisional order granted by the court below should be set

aside in its entirety.

In the result, it is ordered as follows:

1. The appeal be and is hereby partially allowed.

2. The provisional order granted by the court a quo be and is hereby set aside.
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3. Each party shall bear its own costs in respect of this appeal and the application

instituted in the court a quo.

UCHENA JA: I agree.

ZIYAMBI AJA: I agree.

Mbidzo, Muchadehama & Makoni, appellant’s legal practitioners

Nyamayaro, Makanza & Bakasa, respondent’s legal practitioners