AVOIDING MAZIBUKO : WATER SECURITY AND CONSTITUTIONAL RIGHTS IN SOUTHERN AFRICAN CASE LAW

The 2009 judgment by the Constitutional Court of South Africa in Mazibuko v City of Johannesburg is seen by many as a watershed in the interpretation of the fundamental constitutional right of access to water. The Constitutional Court ruled that the right of access to sufficient water does not require that the state provide every person upon demand and without more with sufficient water. Nor does the obligation confer on any person a right to claim "sufficient water" from the state immediately. Reactions to the judgment have been consistently negative, with criticisms largely focusing on the Court's apparent lack of appreciation for the situation of the very poor. It is not easy, however, to overturn a decision of the Constitutional Court and South Africa will need to work within the constraints of the precedent for many years to come. It is suggested in this article that two subsequent, recent judgments (one of the Supreme Court of Appeal in South Africa, City of Cape Town v Strumpher, 2012, and one of the High Court in Zimbabwe, Mushoriwa v City of Harare, 2014) show how it might be possible for courts to avoid the Mazibuko precedent and yet give special attention to water-related rights. Both cases concerned spoliation applications in common law, but both were decided as though access to water supply and water-related rights allow a court to give weight to factors other than the traditional grounds for a spoliation order. It can be argued that in both cases the unlawfulness necessary for a spoliation order arose from a combination of dispossession and breach of rights in respect of a very particular and special kind of property. In the arid and potentially water-stressed Southern African region, and in the context of extreme and apparently increasing poverty, there will undoubtedly be more court cases to come involving access to water. Conclusions are drawn as to how the two judgments considered might offer a way to ameliorate the harsh effects of the Mazibuko judgment.

to enjoy life and to advance socio-economically". 24 They then argue that women are typically the "most adversely affected by prepayment water meter-related problems" in terms of having to find the wherewithal to pay for them, and to deal with the consequences of disconnection -it is mainly women, they say, "who have to make difficult choices between going for days without water and conserving water in ways that compromise health or dignity". 25 Naidoo, Thamaga-Chitja and Shimelis agree, writing that in disadvantaged communities women are an especially "marginalized group and often disconnected and alienated from water [and other] systems that might develop prosperous local food systems and sustainable livelihoods". 26 Their article, which focuses on disadvantaged rural communities, is a useful reminder that it is not just in urban settings (such as were contended over in Mazibuko) that constrained access to water is a problem -in rural settings there might even be additional problems, such as seasonal unavailability of water and greater gender disparities. 27 Dugard and Mohlakoana conclude that basic services in South Africa "exist within a commendably rights-oriented framework" which "explicitly recognises historic disadvantage, including gender, and seeks to remedy this through advancing substantive equality". 28 However, they say, "on the ground at local government level the reality is far more complex, with low-income households facing multiple obstacles in accessing water and electricity services" -with these problems arising "because of a [] generalised exclusionary paradigm in which there is insufficient attention [given] to the needs of the poor". 29 Kemerink, Ahlers and van der Zwaag, writing generally rather than particularly about Mazibuko, contend that the National Water Act "is implemented and enforced in a society thick with historically-entrenched socio-economic and political inequities" and that a decade after its introduction "access to water is still highly stratified along racial 24 Dugard and Maohlakoana 2009 SAJHR 561. 25 Dugard and Maohlakoana 2009 SAJHR 564-565. 26 Naidoo, Thamaga-Chitja and Shimelis 2013 Indilinga 302. 27 Naidoo, Thamaga-Chitja and Shimelis 2013 Indilinga 306-307 and generally. 28 Dugard and Maohlakoana 2009 SAJHR 572. 29 Dugard and Maohlakoana 2009 SAJHR 572.
lines". 30 The dynamics, they say, "of water politics, including water law and rights, cannot be understood without also scrutinising the power relations, discourses and discursive practices that guide perceptions of water problems and proposed solutions". 31 They then argue that while the National Water Act is "comprehensive in its legislation and provides powerful legal tools to address poverty eradication and redress inequities inherited from the past", there has been "in reality little [achieved by way of] transition in the access to and control over water resources ". 32 Van Koppen avers that "over 95% of [South Africa's] water resources are controlled by only 0.5% of the population", 33 and that although post-1994 the water economy has become less White-dominated, "in terms of both clients and water professionals", 34 the beneficiaries of changes have "largely remained those who already benefited in the past and to a lesser extent the upcoming Black middleclass". 35 The "White water economy", she says, "has definitely opened up, but is hardly democratised as yet". 36 Bond traces the history of the "commercialisation" of water in recent South Africa, describing commercialisation as being "viewed with great enthusiasm by the new South African government". 37 He explains that the process has been accompanied by various forms of protest, "including informal/illegal reconnections to official water supplies" and the "destruction of prepayment meters". 38 According to Bond, at one stage in early 2002 municipal officials in Johannesburg were disconnecting some 20 000 households per month from power and water in conditions that are "particularly hostile to vulnerable people". Bond 2013 SAJHR 129. Van Koppen supports this, arguing that historically in South Africa water has increasingly been seen as "an economic good", and that in the 1970s and 1980s the "urgency to implement the 'user pays' principle became stronger with reducing state funding when apartheid South Africa was confronted by economic stagflation, international boycotts and high state spending on the police and military to suppress the immense political protest within and outside South Africa". Van Koppen 2008 Water SA 434. 38 Bond 2013 SAJHR 129. disconnections happened without warning, and the plaintiffs in Mazibuko argued that the system represented a safety hazard in the event of fire. 39 Bond argues, however, that the residents erred in arguing their case with a focus "only upon the consumption needs of low-income residents" and without looking at a wider societal and environmental context. We need "as a first step", he concludes, "more coherent critiques of the full range of practices that undermine our ability to perceive and respect water and other aspects of nature as a commons". 40 Other commentators have pointed, at least impliedly, to the Mazibuko case as having seen missed opportunities. Dugard and Alcaro describe the right to water for human domestic consumption as "increasingly being contested in relation to water resource conservation", 41 but point out that "the only water rights case to have come before the Constitutional Court, Mazibuko, did not include environmental rights arguments even though it involved the 'environmental' issues of the domestic use of water by multi-dwelling poor households with waterborne sanitation". 42 Problems related to access to water can be expected to increase in the future. South Africa is already, according to its own Department of Water Affairs, already the 30 th "driest" country in the world, 43 and the volatility of weather patterns which is likely to accompany changing climatic conditions is likely to have a severely negative effect on the lives of the poor. As Dugard, Lera St Clair and Gloppen point out, 44 it is "clear that the groups that will suffer the most from the challenges posed by climate change are those that are already suffering the negative impacts of other global challenges", 45 or those who have no "voice or power", 46 or those with "poor or no access to health, Or who have no "assets or access to energy" and who are "lacking insurance for flooding or for destruction caused by severe weather events". Dugard, Lera St Clair and Gloppen 2013 SAJHR 7. education, clean water and under conditions of food and labour insecurity", 47 among other factors.
Roithmayr argues, on the basis of Mazibuko, that the Constitutional Court has "embraced a neoliberal interest in cost recovery from the poor, and has declared cost recovery program[me]s constitutional even when they infringe on socio-economic rights". 48 According to Roithmayr, in Mazibuko the Court arguably rejected "the idea that affirmative socio-economic rights created some minimum core of obligation that government owed citizens, and emphasised the need to defer to government decision making in assessing the rights of access for those who could not afford water". 49 She then adds that the Court "found it constitutional to ration access to water based on the ability to pay, even for the country's poorest black residents"; and that, in doing so, the Court "took as its implicit baseline of reasonability [] apartheid inequalities of race and class [--] that target the poor", in effect finding "these inequalities constitutionally permissible, even though cost recovery from the poor serves to reinforce the legacy of apartheid". 50 Roithmayr concludes from this that it might be possible to criticise the Court for "embracing [--] cost recovery programmes that condition full and adequate access to water for the poor on the ability to pay", with "[a]ggressive cost recovery from the country's poorest [] always be[ing] antithetical to the task of dismantling persistent race and class inequality". 51 As with other commentators, she laments a missed opportunity, arguing that "[a]gainst the backdrop of apartheid's stratification of race and class, the Court could have ruled that the city should refrain from aggressive cost recovery targeted towards the country's poorest via pre-paid meters". 52 Writing less formally, but making the accusation of the Court's "endors[ing]" a "neo- described it as seemingly "based on an assumption that people do not pay for water because they are bad or dishonest people" who "want something for free when they need to (and can) pay for the water" -with the judgment "fail[ing] to take account of the fact that even if we all wanted to be good little capitalists like the government wants us to be, we cannot all afford the basic necessities that would sustain our lives". 53 De Vos concludes that it was "previously" the Supreme Court of Appeal which "used to hand down conservative judgments which were then overturned on appeal to the Constitutional Court", but that the "latter [C]ourt" is becoming more conservative and it might eventually be the SCA which "emerge[s] as the [C]ourt championing the rights of the marginalised and downtrodden". 54 There have not been many judgments of South Africa's Constitutional Court which have attracted such near-universal condemnation.

Further judgments: City of Cape Town v Strümpher
The case of City of Cape Town v Strümpher, 55 a judgment of the Supreme Court of Appeal (SCA), per Mthiyane DP, concerned the cutting off by the appellant City of the respondent's access to water for alleged non-payment. The respondent had alleged successfully in a Magistrates' Court that he had been unlawfully dispossessed of his lawful access to water; and had then been successful again on appeal to a full bench of the Cape High Court. The City had now appealed to the SCA. The respondent had alleged that disconnecting his water supply had constituted interference with his statutory water rights in terms of the Water Services Act 56 and had therefore constituted spoliation. 57 His argument was that his water supply could not be lawfully Water Services Act 108 of 1997. 57 Meaning an unlawful dispossession of property of which he had been in peaceful possession. It needs to be noted that in South African law the remedy of the mandament van spolie, which requires immediate restoration of possession, is available to the applicant who has been dispossessed unlawfully of property of which he had been in peaceful possession. Granting of the remedy does not include an enquiry into which party possesses any greater rights -such an enquiry is in fact irrelevant and precluded. The remedy is intended to be a response to persons "taking the law into their own hands", and (subject to certain qualifications, such as the property having been destroyed after the dispossession) operates by way of immediate restoration of the status quo ante. disconnected for non-payment unless the amount by which he was in arrears had been determined judicially in favour of the City. 58 In response, the City argued that summary disconnection of the water supply was authorised by the City's water by-law and by its debt collection by-law. The City contended that it supplied water to the respondent in terms of a supply contract between them; and that, on the authority of an SCA decision (Telkom SA Ltd v Xsinet (Pty) Ltd), 59 the remedy of mandament van spolie was not available to the respondent. 60 The respondent was the operator of a caravan park for permanent residents, which park had been supplied by the City with water for some 37 years up to 2007. In that year the City demanded that alleged arrears of R182 000.00 for water usage be paid within two days, failing which the water supply would be disconnected. There had been a long-running dispute over the amount, with some evidence available that the equipment which the City had used to measure the respondent's water usage was defective. 61 Without responding to a letter from the respondent's attorneys, dated 28 May 2007, the City disconnected the water supply on 17 August 2007. The City, in its answering affidavit, contended that the mere existence of a dispute did not assist the respondent for various reasons -including that the monthly statements which the City furnished to the respondent stipulated that payments may not be withheld even where there is a dispute. The spoliation order granted by the magistrate was, however, upheld by the CPD (full bench) -but leave to appeal to the SCA was granted. 62 The primary issue on appeal, according to the SCA, was whether the City was entitled to disconnect the water supply due to non-payment of arrears, despite the dispute over liability, with the City justifying the summary disconnection on the basis, firstly, that the respondent's right to the water supply was simply a personal right founded on a contract; and, secondly, that the City's actions were authorised by its water bylaw and debt collection by-law. 63  parties was a contractual one; and that, in terms of the Water Services Act, 64 the duty of the water service authority to provide water service is subject to an obligation on the water user to pay reasonable charges. Further, that compelling the City to supply the respondent with water would amount to nothing more than enforcing contractual rights under an agreement which could not provide a basis for granting a spoliation order. 65 The SCA found this argument to be "misplaced" and that the fact that a contract must be concluded by a consumer living in a municipal area does not relegate the consumer's right to water to a "mere personal right flowing from that contractual relationship". The City remains with a constitutional and statutory obligation 66 to supply water to users, such as the respondent user in this case. The right to water, the SCA iterated, is a basic constitutional right. 67 This being the case, the right to water which the respondent claimed when applying for the spoliation order was not based solely on his contract with the City, but was underpinned by his constitutional and statutory rights. This is important. Although dealing with a common law remedy, the SCA brought in considerations other than the traditional assessment of whether or not there had been an unlawful dispossession, with "merits" and considerations of "equity" being traditionally irrelevant.
The SCA then stated that this view was "fortified" by the SCA decision in Impala Water Users Association v Lourens, 68 in which a water user had obtained a spoliation order, and where the SCA had held that the Telkom case was distinguishable and personal rights flowing from the water user's contract of water supply were not merely contractual rights but had been "replaced or subsumed into rights under the National Water Act". The SCA in Impala therefore held that the rights to water in that case were "capable of protection by the mandament van spolie". 69 64 Water Services Act 108 of 1997. 65 Strümpher paras [7-[8]. 66 The SCA referred to s 27(1) of the Constitution; given effect to in s 3(1) of the Water Services Act 108 of 1997. Impala para [10]. The SCA in Impala distinguished the Telkom case also on the basis that the use of bandwidth "did not constitute an incident of its use of the premises", whereas the water rights which were in issue were linked to and registered and the "use of the water was accordingly an incident of possession". Impala para [19].
The SCA then compared the respondent in Strümpher to the water users in Impala, saying that water users have a statutory right to the supply of water in terms of the Water Services Act, which imposes a duty on a water services authority to "ensure access to water services to consumers", with it following that the respondent's right to a water supply could not be classified as purely contractual. Instead, his right to a water supply was subsumed into rights under the Water Services Act and could not therefore be described as merely personal rights arising from a contract. 70 On the issue of whether the City was authorised by the Water Services Act or by relevant water-or debt collection-related by-laws, the SCA held that the City (which "considered that immediate disconnection of the water supply to the respondent's property was authorised") said that "[i]n my view, the City appears to have overlooked the provisions 71 of the Water Services Act, requiring that 'the limitation or discontinuation of water services must be fair and equitable'". 72 The SCA was somewhat contemptuous of the City's attitude, referring to it as being "armed" with an "arsenal of statutory provisions" in reaching its conclusion that it could proceed to immediate disconnection. 73 In the Court's view, however, "[t]o expect the respondent to pay R182 000.00 while he is disputing the very amount erodes the principles of fairness contemplated in" the Water Services Act and the dispute resolution procedures; 74 and rejected as "flimsy" the City's "excuse", proffered during argument, for not having followed its own prescribed procedures. 75 The City attempted also to rely on another SCA case, Rademan v Moqhaka Municipality, 76 to justify immediate disconnection. The SCA found this reliance "misplaced" because the case had dealt not with water supply but with the discontinuation of electricity supply to defaulters; and because there had been in that 70 Strümpher para [11]. 71 Section 4(3)(a) of the Water Services Act 108 of 1997. 72 Strümpher para [14]. In the SCA's view the City had also "overlooked" its own dispute resolution provisions, as provided in its own Credit Control and Debt Collection Policy -including time limits and provision for appeal. 73 Strümpher para [14]. 74 Strümpher para [15]. 75 Strümpher para [16]. 76 Rademan v Moqhaka Municipality 2012 2 SA 387 (SCA). case a deliberate withholding of payment by "unhappy" defaulters. 77 The SCA concluded that there was no justification for the City to have cut off the respondent's water supply. 78 Finally, the SCA considered whether the mandament van spolie was an appropriate remedy, concluding that it was, on the basis, inter alia, that "[t]he respondent's use of water was an incident of possession of the property" and that "[c]learly interference by the City with the respondent's access to the water supply was akin to deprivation of possession of property". 79 The SCA did not in the Strümpher judgment mention the Mazibuko judgment, deciding the matter instead on the basis solely of the principles of spoliation. Nevertheless, it is interesting to consider -in the light of the Mazibuko judgment -the pains which the SCA took to find that water supply stood on a different basis to either bandwidth or electricity. The SCA referred several times to the constitutional nature of the right to access to water; and to the fact that rights of a contractual nature had been "subsumed" by water-related statutes -and then found in favour of the restoration of access to water. Arguably, the effect of the decision is that a Constitutional Court decision is circumvented by recourse to the common law -as influenced by constitutional principles!

Further judgments: Mushoriwa v City of Harare
The writing of the present article was provoked partly by a recent judgment of the High Court of Zimbabwe, Harare, 80 a judgment of Bhunu J. The matter was an urgent application for a spoliation order, coupled with an interdict -the relief sought was a final order to the effect that termination by the respondent City of the applicant's water supply on the basis of a disputed water bill and in the absence of a court order constituted "unlawful self-help"; and that the respondent be interdicted from interfering with, disrupting or terminating the applicant's water supply without a court 77 Strümpher para [17]. order. In the interim, the applicant sought an order directing the City to reconnect his water supply, and barring the respondent from interfering with or terminating the water supply at his premises. 81 The applicant was a lawful tenant and occupier of premises in the City of Harare, the respondent municipality of which was the sole supplier of water. 82 In May 2013 the City sent the applicant a bill for US$ 1 700.00 in respect of "payment for water services rendered". The applicant disputed owing that, or any other, amount -he claimed that he had always paid his bills on time, attached proof to that effect, and argued that the bill was relevant to a bulk meter external to the premises. On 31 May 2013, however, the City "unilaterally and arbitrarily" disconnected the applicant's water supply. He then brought an urgent application for a spoliation order. 83 The judge hearing that application was Bhunu J himself. In his words, "[h]aving regard to the urgency of the case when seized with the matter I immediately ordered by consent of the parties restoration of the water services forthwith pending the determination of this application to avert a catastrophe as one cannot survive without water". The Court noted that the respondent "duly complied thereby ameliorating the urgency of the matter". 84 It is unclear what the Court meant by "duly complied", unless perhaps an undertaking was given to comply, as the Court then goes on to say that "[d]espite the existence of a lawful court order barring the respondent from disconnecting water services from the applicant's premises until the finalisation of this application, the respondent still went ahead and defiantly disconnected water services from the applicant's premises with impunity without any Court order or legal justification". The City refused also to reconnect the water supplies despite the applicant pointing out that it was in contempt of court. The Court had to intervene again and to threaten officials with imprisonment before the City authorities restored the water supply. 85 According to the Court, the undisputed facts established clearly that the applicant was, connection in dispute"; and that the only issue arising was whether such dispossession was lawful. According to the Court, there was "no substance in the [City's] claim that the applicant was no longer in peaceful and undisturbed possession of the water connection because of its threats to disconnect water to the premises", as that argument "goes against public policy that no one should benefit from his own inequity". Should that argument stand, said the Court, the City would stand to "benefit from its own wrongs or inequities should the threats turn out to be unjustified or baseless". 86 The dispute, said the Court, "has to do with their respective rights and obligations in respect of the provision of water to a citizen by a municipal authority", with it being agreed that the City has an obligation "to provide water and the applicant in turn is obliged to pay for it". The "point of departure", said the Court, is what happens "in the event that there is a dispute regarding payment", in which case is the City "entitled to self-help and to unilaterally cut off water supplies to a citizen without recourse to law?". 87 In the Court's words, the City's argument was that statutory authority 88 meant that it was "clothed with unfettered discretion to disconnect water supplies to a citizen at will without recourse to the courts of law". 89 To this argument the applicant responded that the by-law was ultra vires when read, inter alia, with s 77 90 of the Constitution of Zimbabwe. 91 The Court held that the effect of certain words in the legislation which the City relied upon 92 was "to divest the [City] of the unfettered 86 Mushoriwa 2. 87 Mushoriwa 3. 88 Section 8 of the City of Harare Water By-Law Statutory Instrument 164 of 1913, including that "[t]he council may, by giving 24 hours' notice, in writing without paying compensation and without prejudicing its rights to obtain payment for water supply to the consumer, discontinue supplies to the consumer". 89 Mushoriwa 3. While it might seem startling at first glance to see that the authority relied on stems from 1913, this does appear to be a common problem in modern Zimbabwe. Many laws dating back to Rhodesia, especially in the areas of planning and land management, are being used by local authorities today. See, for instance, Ruwende 2014 http://www.zimbabwesituation.com/ news/zimsit_w_councils-still-to-amend-colonial-laws-the-herald/. 90 Section 77 of the Constitution of Zimbabwe Amendment (No 20) Act, 2013 is headed "Right to food and water", and reads: "Every person has the right to -(a) safe, clean and potable water; and (b) sufficient food; and the State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of this right". 91 Constitution of Zimbabwe Amendment (No 20) Act, 2013 (Constitution of Zimbabwe). 92 The third Schedule to the Urban Councils Act (Acts 21/1997, 3/2000, 22/2001, 13/2002, in terms of which municipal authorities are constituted. The Court pointed out that s 198(3) of the Act was to be subservient to the third Schedule to the Act, and that where the words "in discretion upon which it seeks to rely on in justifying its unlawful conduct. Thus the [City] retained the words 'in the opinion of' in its by-law in order to unlawfully confer on itself a discretion not granted to it by the enabling parent Act". 93 This is somewhat convoluted, but what it comes down to is that the Court found that the City of Harare had sought to use a by-law to keep a discretion which had in fact been removed from the statute in terms of which municipal authorities are constituted -and that doing so was unlawful.
The Court then concluded, on this issue, that "when it comes to disconnection of water on account of failure to pay, the City Council's opinion does not matter. It can only disconnect water supplies on no less than 24 hours' notice upon proof that the consumer has failed to pay any charges which are due". As a consequence, the City "cannot lawfully disconnect water from a consumer unless it has established that the amount claimed is actually due", which raises the question of who is to determine whether the amount claimed is actually due or not. 94 The Court then lambasted the City further, suggesting that what the City "seeks to do is to oust the jurisdiction of the courts so that it can operate as a loose cannon and a law unto itself", and that it "seeks to extort money from the applicant without the bother of establishing its claim through recognised judicial process", and that "[t]he disconnection of water supplies without recourse to the courts of law is meant to arm twist and beat the applicant into submission without the bother of proving its claim in a court of law". 95 The Court then iterated that the right to water "is a fundamental right enshrined in section 77 of the [C]onstitution of Zimbabwe"; and that s 44 96 "imposes a duty on the State and all its institutions and agencies to respect fundamental human rights and freedoms". The City, said the Court, "being a public body and institution of local government, it follows that it cannot deny a citizen water without just cause" -and the opinion of the Council" appeared in the Act they were absent from the Schedule. This, said the Court, was clearly a deliberate omission.
with the applicant's possession of the premises by interfering with or terminating water supply". 106 Of course, it might be objected that the references by the Court to the Constitution are obiter, given the Court's eventual finding on dispossession -but they go directly to the question of unlawfulness and make it clear that the Court considered unlawfulness to arise here not merely because of factual possession and dispossession. Rather, the unlawfulness arose from a combination of dispossession and breach of rights in respect of a very particular, and special, kind of property.

Conclusion
Although both judgments concerned the common law remedy of the mandament van spolie, a remedy in the sub-field of property law, and neither raised the Mazibuko case, what they arguably had in common was a concern to make the decision within the confines of the mandament van spolie while at the same time distinguishing between cases concerning "ordinary" property and water.
The obvious and immediate objection which could be made to the arguments outlined in the present article is that as the two cases discussed concerned the application of the mandament van spolie they fall inherently to be decided on the basis of common law principles relating to dispossession and unlawfulness. What is being argued, however, is that although the cases did indeed concern the mandament van spolie, both of them were decided on a basis other than purely that of dispossession of ordinary property.
In the Strümpher judgment the South African Supreme Court of Appeal made several allusions to water standing on a different footing legally to other forms of property.
The Court indicated that the right to a water supply cannot be classified as "purely contractual", or be described as "merely personal rights arising from a contract", and that the right to a water supply has been subsumed into statutory rights. The Court indicated also that the "limitation or discontinuation" of water services must be "fair and equitable". Further, the Court indicated that a case involving the disconnection of water had to be distinguished from cases concerning the disconnection of electricity or of bandwidth.
In the Mushoriwa judgment, the Zimbabwean High Court implied clearly that its thinking was informed by the fact that the order it was being asked to make was "to avert a catastrophe as one cannot survive without water". The Court made it clear that the question to be answered was whether a municipality was entitled unilaterally to cut off supplies of water, as opposed to items of property or services in generalthe implication being that the provision of water stands on a different basis in law from the provision of other services. The Court indicated that the right to water is a fundamental constitutional right held by all persons, which imposes a duty on the State and all its agencies and institutions. Finally, the Court considered the municipal legislation relied on by the respondent City to contravene the fundamental right to water.
On the one hand, the Mushoriwa judgment carries less weight as a judgment of first instance than the Strümpher judgment, which was made at the highest level.
However, the judgment in Mushoriwa in a sense carries more weight, as a judgment not constrained directly by the Constitutional Court precedent, which has been severely criticised. Of course, it must not be forgotten that in neither case was Mazibuko raised -the two cases involved the common law remedy of the mandament van spolie. In that sense the present argument is vulnerable to the charge that the writer is erring by conflating constitutional rights issues with the principles of common law. However, it seems to the present writer that both judgments saw a court called upon to decide a common law matter bringing into its judgment constitutional rights considerations, which indicate that the Court saw the subject matter of the dispute and the rights involved as being in some way different. In this regard the Zimbabwean High Court, while indicating "obeisance" to the South African Supreme Court of Appeal in Strümpher, was far less fettered than was the SCA in Strümpher -and was consequently able to go further in basing its judgment not just on common law principles but also on constitutional and human rights considerations.
water shortages.
In the Southern African context of grinding poverty, underdevelopment, governmental inefficiency, poor service delivery to the poor, and harsh environmental conditionsincluding gross environmental insecurity in respect of water and access to waterthere will undoubtedly be many court cases to come, involving access to water. The It is not being argued that the mandament van spolie provides an alternative means to protect rights which were de-prioritised by the Constitutional Court in the Mazibuko case. What is being pointed out is that in the face of a ruling which has been roundly criticised, and which certainly appears to have under-recognised the limitations of the poorest members of Southern African society, litigants and the judiciary may well turn to common law remedies as a way to address issues of inequality until such time as the constitutional rights of the most vulnerable are better recognised. By treating questions of access to water differently from other property questions, courts deciding cases on the basis of common law remedies may eventually make a more valuable rights-based contribution to legal development than did the Constitutional Court in Mazibuko.

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In particular, by making it clear that water as property has a status different from that of "normal" property items; and that the fundamental right of access to water, again, makes it inequitable to treat water according to basic common law principles. 113 Unfortunately, subsequent media reports have indicated that the Harare City Council has continued to cut off water supplies to payment defaulters -according to one report, to approximately 11 500 defaulters between October and November 2014. Sunday Mail Reporter 2014 http://www.sundaymail.co.zw/?p=19919. Also see Zimbabwe Today 2014 http://www.zimbabwetoday.org/topics/service-delivery/water-sanitation/2014/10/18/5000water-bill-defaulters-cut-off/. Even more recent media reports do indicate, however, that the Mushoriwa judgment has been followed by a Magistrates' Court (per Magistrate Vimbai Mutukwa, in case 93/2015) in the city of Kwekwe in central Zimbabwe; with an order that the water connection of a resident, one Jackie Ngulube, be restored by the City Council (or, failing the Council, by the Messenger of the Court) after it had been disconnected by the City despite his claiming to be in good standing as far as payment went. The Zimbabwean 2015 http://www.thezimbabwean.co/news/zimbabwe-news/74635/city-of-kwekwe-ordered-by. Urban Councils Act (Acts 21/1997(Acts 21/ , 3/2000(Acts 21/ , 22/2001(Acts 21/ , 13/2002 [Ch 29:15] the Mazibuko precedent and yet give special attention to water-related rights. Both cases concerned spoliation applications in common law, but both were decided as though access to water supply and water-related rights allow a court to give weight to factors other than the traditional grounds for a spoliation order. It can be argued that in both cases the unlawfulness necessary for a spoliation order arose from a combination of dispossession and breach of rights in respect of a very particular and special kind of property. In the arid and potentially water-stressed Southern African region, and in the context of extreme and apparently increasing poverty, there will  Ed Couzens. BA Hons LLB (Wits) LLM Environmental Law (Natal and Nottingham) PhD (KZN). Associate Professor, University of Sydney, Sydney Law School, Australia; Attorney of the High Court, RSA. E-mail: ed.couzens@sydney.edu.au. Thanks are due to both Meda Couzens and Victor Nkiwane for their assistance with the research. The author has participated in the research project "Legal Framework to Promote Water Security" (WATSEC), financed by the Academy of Finland (268151).