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.
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.
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)….;
(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 s19 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.”
I note that the power to cut off
water for non-payment was expressly catered for in s16 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 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 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 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 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.
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.
s270, 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 s321 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 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 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' …. .”
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.
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 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).
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. 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” 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 s49 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. 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 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.
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.
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 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, s27 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 s27 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 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 s27 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 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
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.
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 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.
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 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.
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
