Gweru Residence Forum and Pretty Chabuda and Kundai Ngoma and Michael Monde v Gweru City Council and Minister of Local Government, Public Works & National Housing N.O. and Minister of Health & Child Welfare N.O.

### Preamble
1
HB 22/21
HC 721/20
---------


GWERU RESIDENCE FORUM

And

PRETTY CHABUDA

And

KUNDAI NGOMA

And

MICHAEL MONDE

Versus

GWERU CITY COUNCIL

And

MINISTER OF LOCAL GOVERNMENT, PUBLIC

WORKS & NATIONAL HOUSING N.O.

And

MINISTER OF HEALTH & CHILD WELFARE N.O.

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 16 APRIL 2020 & 25 MARCH 2021

Urgent Chamber application

Chidavanyika for the applicants

Ms V. Chikomo for the 1st respondent

Ms Hove for the 2nd and 3rd respondents

TAKUVA J:	The applicants have approached this court on a certificate of urgency seeking the following interim relief.

Final order sought

That you show cause why a final order should not be made in the following terms:

The provisional order be and is hereby confirmed.

That 1st respondent’s failure to ensure an adequate and consistent supply of clean and safe water to Mkoba be and is hereby declared to be a violation of the applicant’s right to clean safe and portable water protected under section 77(a) of the Constitution.

That the 2nd and 3rd respondents’ failure to ensure the 1st respondent provides clean and safe water to the residents of Mkoba on a consistent basis for the 21 days of the National Lockdown and after, be and is hereby declared to be a violation of applicants’ rights in sections 77, 76, 51, 53 and 48 of the Constitution.

Respondents shall jointly and severally the one paying the others to be absolved bear the costs of suit.

Interim relief granted

Pending the finalisation or discharge of the provisional order the applicants are granted the following interim relief:

The 1st respondent shall forthwith ensure that there is a safe, portable, adequate and uninterrupted supply of water to Mkoba during the period of the lockdown and after.

In addition and or alternative to 5 above, the 1st respondent shall forthwith, during the duration of the lockdown and beyond make available water from bulk water supplies and distribute it in Mkoba from mobile sources in a manner to avoid the grouping of big crowds at the water points in a way that ensures the combating of the spread of COVID 19.

The 1st respondent shall immediately provide crowd control officers to ensure that the people accessing water at borehole points do so in a manner complying with the social distancing guidelines as specified in various laws and the lockdown directive.

The 1st and 3rd respondents shall forthwith notify the applicants and the residents of Mkoba on safety and general hygiene that is water related in light of the COVID 19 through all medium of communication.

Facts

In the founding affidavit applicants alleged through one Pretty Chabuda that, the 1st applicant, Gweru Residence Forum has real and substantive interests in the outcome of this matter as required by s85 (1) of the Constitution of Zimbabwe in that:

Acting in the interests of a class of persons, acting the public interest, it is an association acting in the interests of its members.

Other applicants have rights at law that are being impugned and require the court’s intervention

First respondent has failed to provide clean running water to certain parts of Gweru, Mkoba 11, 13, 15, 19 and 20

Mkoba 1 – tap water only available once a week

Mkoba 6 – borehole long queues

Residents pay a fixed water charge per month to 1st respondent.

Situation made worse by COVID 19

21 day lockdown  - torrid time to access water

Police chase people from the shopping centre at Mkoba 6 where borehole is situated

Efforts to seek assistance from Task Force and 1st respondent officials failed

Respondents violated the Constitution by failing to swiftly act to ensure that there is safe clean and portable water in Mkoba.  The precise provision is section 77 (a) which states ; every person has the right to safe, clean and portable water … 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.

S44 of the Constitution – every organ of the State must respect, promote and fulfill the applicants’ rights.  Lack of portable water undermines all the efforts to prevent the outbreak and further spread the virus.

Urgency

Applicants contended that the matter is extremely urgent and must be treated as such

As per the President’s promise, the provision of water and oblution facilities was to be given priority.  Applicants hoped that 1st respondent would comply.  It did not.

Secondly, National COVID 19 Task Force made the same promise but no action was taken.  Due to the lockdown meant to combat COVID 19, there is a realization of harm happening.

Finally applicants claimed to have met the following requirements of a declaratur/mandamus

Clear and definite right to water;

Injury actually inflicted or reasonably apprehended caused by the failure to provide water;

The absence of a similar protection by any other ordinary remedies

Analysis

This court must first dispose of points in limine before dealing with the merits of the case.  1st respondent has opposed the application by firstly raising a point in limine that the matter is not urgent at all.  A matter is urgent where when the need to act arises, the matter cannot wait.  Urgency which stems from a deliberate inaction until the day of reckoning is nigh is not the urgency contemplated by the rules.  It is self-created urgency.

In casu,

(1) 	It is  common cause that the (cause of action) namely lack of adequate water had always been the state of things from even before the 30th of march 2020.  Consequently, the applicants have always known of the water woes complained of prior the COVID 19 outbreak and did not act on the problem then.  They waited for years.  See Michael Monde’s opposing affidavit page 31 “No running water for many years now” Kudzai Ngoma page 29 “we have no running water for a long time.

(2)	The right to safe clean and portable water enshrined in section 77 (a) of the Constitution has existed since 2013 when the new Constitution came into force.  Applicants did not enforce their rights when the need arose.

(3) 	The outbreak of COVID 19 is not and cannot be a cause of action.  It is a separate phenomenon.  Water rationing is not associated with COVID 19.  It has always been there.  In fact it has existed for years due to draught and other factors.

(4) 	COVID 19 has simply magnified the problem.  City of Harare v Mushoriwa SC-54-18; Mazibuko & Ors v City of Johannesburg 2019 ZAR 28.

(5) 	The purported reliance on section 77 (a) of the Constitution as the basis of urgency is flawed in that the right is not absolute.  Whilst it is accepted that ordinarily human rights issues are by their nature mostly urgent, it is a general assertion, as almost all human endeavours involve human rights.  The matter is not necessarily urgent because it is a human right issue.  In any event the purpose of the constitutional enactment of social and economic rights was to ensure that the State continues to take reasonable legislative and other measures progressively to achieve the realization of rights.  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.  Rights vary overtime and context i.e the concept of reasonableness.  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 realization of the right.  This is a matter in the first place for the legislature and executive, the institutions of government best suited to investigate social conditions in the light of available budgets and to determine what targets are achievable in relation to social and economic rights.

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;

(a) 	if government takes no steps to realise the rights, the courts will require it to take steps;

(b)	 if government adopted measures that are unreasonable, the courts will – review them to meet the constitutional standards of reasonableness.

DISPOSITION

In the circumstances, I find that the matter is not urgent.  It is accordingly removed from the roll of urgent matters.

Chitere Chidawanyika & Partners, applicants’ legal practitioners

Messrs Dube-Tachiona & Tsvangirai, 1st respondent’s legal practitioners