THE High Court has outlawed the Zimbabwe National Water Authority (Raw Water Tariffs) Regulations, Statutory Instrument (SI) 48 of 2016, which gave Environment, Water and Climate minister Oppah Muchinguri powers to unilaterally review water tariffs.
BY CHARLES LAITON
Justice David Mangota made the ruling on May 3, 2018, following an application by Hippo Valley Estates (Ltd) and Triangle (Ltd), whose water tariffs had been increased by Muchinguri since December 2015.
Sometime in 2016, Hippo Valley and Triangle, petitioned the court seeking the invalidation of the law, arguing that the Act gazetted by Muchinguri contravened an agreement signed between government and the two sugar producers in 1961.
In his affidavit, Hippo Valley and Triangle Limited’s water affairs executive, Enerst Eston, had submitted that Muchinguri’s move had violated the Constitution and as such should be invalidated.
“This is an application to set aside, as being invalid, the Zimbabwe National Water Authority (Raw Water Tariffs) Regulations, Statutory instrument 48 of 2016 on the basis that it is ultra vires the enabling Act as it was passed without compliance with the law. Furthermore, the regulations violate the applicant’s vested rights,” Eston said.
“The applicants were never consulted about the water charges before the review was done. The first time the applicants got to know about the review of the charges was when they received letters from Zinwa advising of the new charges.
“Zinwa did not consult the applicants before writing. In fact, Zinwa wanted the applicants to pay the new charges with effect from December 1, 2015, and it proceeded to invoice them at the new rates from December 2015.”
In his judgment, Justice Mangota said Muchinguri had missed the point and as such her decision was against the law.
“The respondent has no power at all to review the water tariffs in the first agreement. She reviews the water tariffs in the second agreement where Zinwa and the second applicant have failed to agree on the tariff which must apply to the latter’s consumption of water for its operations,” the judge said.
“It is evident from the foregoing that the respondent cannot mero motu increase the water tariffs. It is also clear that he/she cannot increase the water tariffs which Zinwa puts forward to him/her for his/her consideration unless he/she is satisfied with Zinwa’s reasons for the increase,
“There is no doubt that the respondent acted outside section 30 of the Act when she published the regulations. Her conduct was ultra vires the enabling Act, so to speak. Given the above described set of circumstances, the complaint of the applicants cannot be faulted.”