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High Court slashes water tariffs. . . Minister acted unlawfully, Judge rules

By Daniel Nemukuyu
The High Court has quashed the Zimbabwe National Water Authority (Raw Water Tariffs) Statutory Instrument 48 of 2016, which hiked raw water charges for commercial agriculture from $9,45 to $12 per mega litre.

Oppah Muchinguri
Oppah Muchinguri

Justice David Mangota ruled that the Minister of Environment, Water and Climate (Oppah Muchinguri-Kashiri) acted unlawfully in hiking the tariffs, two years ago.

The ruling will come as a welcome boost to farmers and the Command Irrigation programme.

The ruling was made in favour of Hippo Valley Estates and Triangle Limited, the sister companies that grow sugar cane and process sugar.

Hippo Valley and Triangle argued that the minister unilaterally hiked the charges in disregard of agreements entered by the commercial farmers and Zimbabwe National Water Authority (Zinwa), which among other things, states that the parties should discuss and agree on the raw water tariff.

The minister, according to the agreements, can only chip in and gazette the fees in the event that the parties reach a deadlock.

In the court application, the two firms argued that they were never consulted on the fee hike and that there was no proof that Zinwa had applied for the intervention of the minister.

Advocate Thembinkosi Magwaliba represented the two companies in the court application.

To that end, Justice Mangota described the conduct of the minister as unlawful before granting the order sought by the two sugar companies.

“The respondent (minister) has no power at all to review water tariffs in the first agreement.

“She reviews the water tariffs in the second agreement where Zinwa and the second applicant (Triangle) have failed to agree on the tariff which must apply to the latter’s consumption of water for its operations.

“The respondent acted ultra vires the agreements when she reviewed the water tariffs for the applicants.

“She had neither the power nor the authority to do what she did. A fortiori when she acknowledges, as she does, the existence and, by necessary implication, the binding nature of the agreements which Zinwa’s predecessors signed with the applicants,” reads the judgment.

The judge said the minister, under the circumstances, can only act following a written request by Zinwa.

“It is not within respondent’s power to act in terms of Section 50 of the Zinwa Act without Zinwa having made any written representations to him or her on the issue of the proposed increase.

“There is, in casu, no evidence that Zinwa applied to the respondent to consider any proposed increase. There was, in fact, no proposed increase of water tariffs at all.

“Her (minister) conduct was ultra vires the enabling Act, so to speak,” said Justice Mangota.

The minister, Justice Mangota said, violated the companies’ right to administrative justice.

“Contrary to the agreements which required the applicants and Zinwa to discuss and agree on review of water tariffs, the respondent simply increased the same.

“She did not notify the applicants of the increase. She did not afford them an opportunity to make representations. She simply published the regulations as a bombshell.

“It was, at any rate, not within the scope of her work to review the water tariffs. That work was for Zinwa. Her work was to either approve or disapprove what Zinwa would have placed before her,” he said.

Justice Mangota said the Minister violated Section 56 of the Constitution of Zimbabwe.

The agreements relied upon were signed between Zinwa’s predecessors and the commercial farmers in 1961 and they still subsist.

Despite the agreements, Zinwa’s chief executive officer wrote to the companies informing them of the new tariffs, which were effective from December 1, 2015.

The new tariff was set at $12 per mega litre, up from $9,45.

Five months later, the minister then published the statutory instrument which sparked the legal battle. The Chronicle