Urgent
Chamber Application
MWAYERA
J:
A
raft of measures meant to comply with the World Health Organisation
(WHO) guidelines on the prevention containment and treatment of
Coronavirus disease commonly known as COVID19 prompted the Minister
of Health and Child Care and indeed the Government of Zimbabwe to
make an order for National lockdown under Statutory Instrument 83 of
2020 on 28 March with effective date of operation 30 March 2020.
The
order among other important provisions provides that the supply of
water and electricity services are critical and essential services.
The
virus is real and indeed a menace as evidenced by reports of the
numbers of the infected and dead. Zimbabwe has not been spared by
this invisible but real enemy wreaking havoc among the rich and the
poor without distinction by colour creed or age.
At
the time of hearing 9 recorded cases had been confirmed and 1 death
recorded in Zimbabwe, South Africa had 1,505 positive cases and 9
deaths. Globally there were 1,051,697 positive cases and 56,986
deaths.
Bearing
in mind the emphasis on personal hygiene anchored on the need to
regularly wash hands with clean running water and soap the applicants
jostled into action.
The
applicants had no water supply since the Zimbabwe Water Supply pumps
supplying the household with water for community consumption had been
rendered dry by disconnection of electricity.
World
over including our neighbour South Africa news reported increase in
numbers of infected people and deaths due to the formidable pandemic.
The
applicants faced with COVID19 outbreak and threat without running tap
water due to ZESA power cut to the ZINWA outlet which supplies them
with water, approached this court through the urgent chamber book.
The applicant sought:
“TERMS
OF THE FINAL ORDER SOUGHT
1.
That the Respondent provides electricity supply services to the
Zimbabwe National Water Authority water pumps within Arda–Transau
community for the duration of the state of disaster subject to the
load shedding schedule.
2.
No order as to costs.
TERMS
OF THE INTERIM ORDER SOUGHT
1.
That the Respondent immediately restores electricity supply services
to the Zimbabwe National Water Authority water pumps within
Arda–Transau community.”
The
Respondents were properly served but did not respond or appear.
The
brief history of the matter is as follows:
The
applicant (trustees of the trust) represent the interests and rights
of the Trust, its members and beneficiaries relocated from
Chiadzwa,diamond fields in Marange and now reside in ARDA TRANSAU.
The
relocation occurred between 2010 and 2016.
From
inception of relocation up to 2019 December the mining companies that
relocated their families have been responsible for paying for
electricity supply to the respondent. The electricity supply powered
water pumps installed by Zimbabwe National Water Authority for water
supplies to the relocated families. The mining companies namely Anjin
Diamond Mining Company, Mbada Diamonds Housing, Jinan Mining, Marange
Resources and Zimbabwe Consolidated Diamond Company paid in full for
the power utility bills.
Upon
the ceasation or discontinuity of the complete subsidization of power
utility bills by the mining companies, the community struggled to pay
for the electricity consumption bills.
This
culminated in a cumulative debt of ZW$30,000-00 owing to the
respondent ZESA. Consequently the respondent rightfully discontinued
the supply of electricity to the community for none payment of
electricity bills. The disconnection inevitably means no supply of
tap water to the community.
On
the face of it this is self-created urgency stemming from none
payment of ZESA bills but the question is, is it really self-created
urgency given the background history of being relocated and having
mining companies pay the ZESA bills and then stopping.
The
problem was not the villagers own making.
Upon
considering whether or not a matter is urgent the settled factors
which fall for consideration should never be looked at in isolation
neither should they be dissociated from the history and all
circumstances of the cause.
Looking
at requirements of urgency in isolation would lead to erroneous view
of the status of the matter.
The
immediate factors giving rise to this urgent application fall under
scrutiny.
On
30 January 2020 the World Health Organisation (WHO) declared
Coronavirus Disease – 2019 generally known as COVID19 a Public
Health Emergency of International Concern.
Pursuant to the declaration WHO set guidelines for all countries to
curb and control the outbreak of the disease and among other
important measures is the critical requirement that individuals must
regularly wash hands with clean running water and soap based
substances, and further that people must maintain social distancing
for about a metre from the next person in order to minimize the risk
of transfer of the virus disease.
The
Zimbabwean Government in response is no exception as it declared
through Presidential Action a State of Disaster
and consequently a National Lockdown to contain the spread of COVID
19.
In
an effort to give effect to the WHO guidelines to contain the spread
of COVID 19 and protect citizens the Government of Zimbabwe in terms
of SI 83 of 2020 banned gatherings of more than two persons in public
places and declared water
and electricity supply services as essential services.
(underlining my emphasis).
Water
and electricity are critical services, however at the time of hearing
both are lacking to the applicants despite being also part of all the
other citizens in the declared state of disaster occasioned by the
outbreak of COVID 19.
The
circumstances are clear that the applicants do not have clean and
regular water supply because of electricity disconnection to Zimbabwe
National Water Authority ZINWA. This naturally poses a threat to
personal hygiene during the lockdown period and worse still spells
doom to the intended containment of the national disaster and would
be further obstructive to the global efforts to successfully fight
against this deadly scourge pandemic COVID 19.
The
case cries out for urgent redress and indeed spells out and clearly
meets the requirements of urgency as contemplated by the rules of
this court.
The
applicant acted with agility as they set out to file the application
upon the publication of water and electricity as an essential
commodity. The publication was on 28 March 2020 and 3 April
applicants were at court.
They
undoubtedly treated the matter as urgent. See Madzivanzira
and Ors v Dexprint (Pvt) Ltd and Anor.
Secondly
there is no other remedy except seeking redress with the court for
connection of electricity to the ZINWA pipes for water to be availed.
The
applicants have accrued a debt through the diamond companies under
whom they were resettled. The long term solution of awaiting for
repayment of debt would occasion irreparable harm not only to the
applicants but the national and global village.
Critically
the none availability of water disrupt the efforts to contain the
spread of COVID 19.
There
will be irreparable harm occasioned to the respondents because the
applicants are not seeking to be exonerated from the debt neither are
they seeking the debt to be written off but are seeking an interim
relief for restoration of electricity supply to ZINWA pumps for them
to access clean and portable water for personal hygiene during the
lockdown period only.
The
urgent relief sought is the only remedy that will satisfactorily
redress the dire circumstances of the applicants.
A
matter is viewed as urgent if circumstances depict it cannot wait as
waiting and dealing with the matter later would render the relief
sought hollow or useless.
In
this case, at the time of hearing the deadly pandemic outbreak was
causing havoc world over. This jurisdiction declared it a disaster
and water and electricity supply were termed critical or essential
services. To have the matter wait and proceed on the ordinary role
would amount to a reactive reaction post event. That would not serve
any purpose.
In
this matter the circumstances and the prevailing situation speak
volumes to the extreme urgency of the matter. This is a case which
apparently denotes urgency from the cause of action and nature of
relief sought. See Document
Support Centre (Pvt) Ltd v Mapuvire.
In
the present case the matter is fully clothed and colored with
urgency. The balance of convenience lean in favour of granting the
interim relief sought.
Accordingly
the interim relief sought is granted.
Maunga
Maanda & Associates,
applicants legal practitioners
1.
Situation report 75 - World Health Organisation
