Urgent
Chamber Application
MOYO
J: This
is an urgent application wherein the applicant seeks the following
interim relief:
“Pending
the return date, the applicant is granted the following relief:
(1)
The 1st
and 2nd
respondent be and are hereby ordered immediately to reconnect the
pipes and restore the supply of water from Blanket Dam in Gwanda to
Vumbachikwe Mine which they disconnected.
(2)
Pending the return date, the 1st
respondent, its employees and assignees including 2nd
respondent, be and are hereby interdicted from interfering with
applicant's possession of and access to its pump house at Blanket
Dam, Gwanda, by interfering with or terminating the water supply
without a court order.
(3)
The 1st
and 2nd
respondents, jointly and severally, the one paying the other to be
absolved, shall pay costs of suit for this application.”
I
granted applicant the interim relief and stated that my reasons would
follow, here are they:
The
basis of the application was that the second respondent, representing
the first respondent, had entered the area where applicant's pumps
for water to the mine and its residents were, and had placed their
own locks over the applicant's locks, making it impossible for the
applicant to pump water from the dam. The applicant had a long
standing agreement with first respondent which was being renewed
annually wherein applicant reticulated water supplies from a dam
under the first respondent's authority, and would pump water from
there and pay levies to the first respondent. Currently the
agreement they had expired but by conduct both parties continued in
the spirit of the contract and were actually involved in negotiations
on renewing that contract.
Second
respondent allegedly disconnected water supplies to applicant and the
mine as well as applicant's employees for outstanding levies that
have not been paid as applicant is in arrears. At the hearing of the
matter respondents presented the argument that the applicant was in
arrears, and that they disconnected water supplies on that basis, as
well as that applicant no longer had a valid contract to draw water
from the dam, its contract having expired on 31 March 2016, with
applicant dilly dallying on the issue of renewing the contract.
Applicant
on the other hand presented the argument that whilst they were in
arrears, they were in discussion with respondents on how to make good
those arrears and that they were making frantic efforts to have the
contract renewed and were not getting any joy from respondents. The
application has attached to it various correspondence between the
parties.
There
is an email by second respondent addressed to applicant's
representative and it reads as follows:
“We
would like to inform you that Vumbachikwe Mine owes ZINWA $40,000-00
and the authority intends to disconnect you on 5 May if the money is
not paid in full. We are also advising you to avail the keys for your
pump house so that we can gain entrance to it. Failure to comply to
(sic)
this may lead us to break through.”
The
wording of this email shows clearly that second respondent had
decided to take the law into his own hands instead of suing applicant
for a debt he believes is owed to the first respondent; he in fact
threatens to take the law into his own hands.
The
same date, applicant responded trying to show the unlawfulness of
such conduct as was threatened by the respondents.
Applicant's
case is that it has a right to water in terms of the Constitution of
Zimbabwe. In fact section 77 of the constitution of Zimbabwe provides
as follows:
“Every
person has the right to -
(a)
Safe, clean and portable 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 realization of this right.”
The
State in terms of the Constitution has a duty to provide water to
citizens, applicant, has joined hands with the State in making the
realisation of this goal by reticulating water supplies from the dam.
On the face of it, it would not be constitutional for the State to
neglect its duty in terms of section 77 of the Constitution, simply
because there are outstanding levies owed to first respondent.
Respondents, in my view, should sue applicant for any dues rather
than resort to self-help and in so doing abdicate their
constitutional mandate.
A
prima
facie
right has thus been established, in my view, the right to water.
The
respondents resorted to self-help which cannot be allowed by this
court and as matters stand, applicant has no water supplies to its
mine and its residents, they have no alternative remedy except
through an order of this court. The balance of convenience therefore
favours the applicant. Applicant, in my view has satisfied the
requirements for an interdict which are:
(1)
A prima
facie
right.
(2)
A reasonable apprehension of irreparable injury.
(3)
No other alternative.
(4)
And the balance of convenience favouring the granting of the
interdict.
Refer
to Zesa
Staff Pension Fund
v Mashambadzi
SC 57/02.
I
have not accepted respondent's contention that there is
justification for the disconnection as applicant is in arrears and
that currently there is no valid contract between the parties, for
the following reasons:
(1)
Respondents are not allowed at law to resort to self-help. Refer to
the case of Mushoniwa
v
City
of Harare
HH 195/14.
(2)
The applicant was in peaceful and undisturbed possession of the pumps
and the water supplies, they were thus despoiled by the respondents
and all an applicant in an action for spoliation has to prove is that
they were in peaceful and undisturbed possession of the property in
question prior to being despoiled by the respondents. The lawfulness
or otherwise of the possession is neither here nor there. Refer to
the case of Yeko
v Qona
1973 (4) SA 735 (A). Refer also to the case of De
Jager
v Favah
and Nestadt
1947 (4) SA 28 (W) MILLIN J said the following at page 35;
“What
the court is doing is to insist on the principle that a person in
possession of property, however unlawful his possession may be and
however exposed he may be to ejectment proceedings, cannot be
interfered with in his possession except by due process of the law,
and if he is so interfered with the court will restrain such
interference pending the taking of action against him by those who
claim that he in wrongful possession.”
At
the beginning of the matter counsel for the respondent sought to
object to the proceedings as not being urgent, I advised him that in
my view the matter was urgent hence my decision to set it down. It
cannot be said where mine or a community has water supplies cut off
arbitrarily that matter is not urgent. Again, spoliation proceedings
are by their very nature urgent. Refer to the case of Willovale
Estates CC and Another
v Bryan
More Estates Ltd
1990 (3) SA 954 (W) at page 961 where KIRK-COHEN
J stated
thus:
“…,
a spoliation must be adjudicated upon ante omnia and thus speedily.
Speedy relief is given upon the simple facts of possession and
dispossession.”
I
accordingly formulated the view that applicant had indeed made a case
for the relief sought and I thus granted the provisional order for
the aforestated reasons.
Dube-Manikai
& Hwacha C/o Mathonsi Ncube Law Chambers,
applicant's legal practitioners
Dondo
& Partners, C/o Moyo & Nyoni,
respondent's legal practitioners
