High Court dismisses OK challenge

High Court dismisses OK challenge
Published: 19 February 2018
THE High Court has dismissed an application by OK Zimbabwe Limited challenging the pending disconnection of power at its shop in Gwanda over a $72 000 electricity bill.

The ruling by Bulawayo High Court judge Justice Maxwell Takuva follows an urgent chamber application by OK Zimbabwe Ltd citing the Zimbabwe Electricity Transmission and Distribution Company (ZETDC) as the respondent.

OK Zimbabwe Ltd sought an order directing ZETDC to stop disconnecting electricity to its premises at Gwanda NSSA Shopping Complex. The giant retailer also wanted the power utility interdicted from interfering with its possession of the premises or terminating electricity supply.

Justice Takuva said OK Zimbabwe's application lacks merit.

"The balance of convenience does not favour that the applicant continues to enjoy power that it has not paid for. To order otherwise would be against public policy, and in my view the applicant's contention that respondent, by threatening to disconnect supply, is resorting to unlawful self-help has no merit," ruled the judge.

Justice Takuva said ZETDC is authorised in terms of section 4(1) (a) of Statutory Instrument 155/88 to disconnect electricity to defaulting consumers. He said the applicant's right arises out of a contract with respondent and has nothing to do with the Bill of Rights in the Constitution.

"Equally unmerited is applicant's reliance on section 71 of the Constitution that deals with property rights. The fallacy of this argument is laid bare when one considers the fact that electricity belongs to the respondent. The applicant enjoys it as it comes, it is not applicant's property," said Justice Takuva.

"The applicant does not have a right to continue to enjoy power that it is not paying for. Accordingly, the application be and hereby dismissed with costs," said Justice Takuva.

OK Zimbabwe, through its lawyers, Joel Pincus, Konson and Wolhuter, argued that the $72 319,16 electricity bill was not authentic and lacked proof of legality.

"The respondent is taking the law into its own hands by threatening to disconnect electricity without a court order. The restated amount is in dispute, the respondent should first obtain a court order," said the OK Zimbabwe lawyers.

OK Zimbabwe argued that the disconnection of power is a violation of its fundamental rights enshrined in section 77 of the Constitution. ZEDTC through lawyers R Ndlovu and Company said it did not resort to self-help or take the law into its own hands but simply used its rights provided in the law.

"The applicant has not paid its bill. The respondent has an obligation to supply power to applicant as long as that electricity is paid for."
- online
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