Home » Judicial » Water Cuts: Garnishee Order the Answer

THE High Court has ruled that disconnecting water supplies to a household without a court order is illegal, breaching the constitutional right of every Zimbabwean to clean water and to seeing State and Government institutions respect fundamental rights and freedoms.

Justice Chinembiri Bhunu’s judgement will excite a lot of debate and perhaps appeals to higher courts, but we would hope that the result will instead be serious thought given to finding an effective, fair, inexpensive and safe way for municipalities and other water providers to claim their just debts without infringing the rights of their ratepayers and residents.

Municipalities have been using water cuts for more than a century to force ratepayers to pay debts. If a ratepayer owes money for anything — rates, sewage charges, refuse fees — the municipality has reserved the right to assign all payments to other accounts, leaving the water account in arrears, and then cutting water because the ratepayer has a debt on this account. Perhaps in 1914, when everyone still had their wells since piped water was so new, this might have been fair.

In 2014, when there are so many complications about whether tenants, residents or owners are legally responsible for charges, and when mistakes do happen, the system can be unfair. The new judgement arose out of Harare City Council claiming that a flat had consumed US$1 600 worth of water, which does seem improbable flat owners do not generally run large irrigation schemes.

The other way councils have sought payment of debts is to engage debt collectors. This, at first sight, seems a better solution but does not resolve the issue about whether a debt is justified, or just the result of a broken meter or underground leak, and can impose serious costs on the city resident.

The main aance it makes is that the collector cannot take action until a magistrate has signed the order, which gives the resident an opportunity to tell his story in court. But few can afford legal aice and the order allowing the collector to seize property to auction imposes a serious penalty in that second-hand auctioned property does not generally produce much money, leaving the resident without furniture and still in debt.

So we need to go back to basics. All municipalities have a large number of residents who do not pay bills they need that money.

Some residents say they cannot afford the bills others say they will pay for services delivered but will not pay for garbage trucks that do not come, nor for water not delivered, nor for what seems serious overcharging.

We think that it would be quite possible to first establish a fair bill. The councils could keep records of when garbage trucks did not go into a particular area, and cut the monthly charge accordingly. They know when they do not deliver water, and can cut the basic charge. Odd consumption records, such as a US$1 600 water bill for a single flat, must be investigated. This will produce fair bills.

Enforcement needs to be simple, effective and cheap. Rather than using debt-collectors and chattel seizures, we have argued before that garnishee orders make far more sense. The councils get their cash residents have the monthly charge for arrears approved by a judicial officer and neither party has to cope with huge collection costs.

Councils also need to take a leaf from Zesa’s book and install pre-paid water meters. Water charges are the one main variable in the monthly bills. The rest of the charges are fixed and not really subject to argument.

With pre-paid meters the arguments largely disappear, and anything significantly odd in consumption, the result of a broken pipe or broken meter, will be very quickly reported and, since the resident is now the creditor, he can force the council to fix the problem.

In the interim, and for water bills only, councils could have tested for legality the Bulawayo system of putting a choke in a water meter to allow a trickle of water to flow, so that basic health and sanitation needs are met but with a lot of inconvenience and no opportunity of waste.

But what Justice Bhunu’s ruling does is end the old systems. We now need to find something better, more effective, safer, fairer and legal.

We hope this ruling will provide the incentive for a debate to produce this better system.

Source : The Herald