Advanced Search

Water - Miscellaneous Powers (Ss 26-30)

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.

 

26.     Power to create servitudes

 

            (1) Where any person who is the holder of a water right or who has applied for the grant of a water right is unable fully to enjoy the benefit of the right without a servitude, and has failed to secure a servitude by agreement with the owner or occupier of the land over which the servitude is required, he may apply to the Board through the Water Registrar for the creation of such servitude.

            (2) Upon the receipt of any such application the Water Registrar shall serve notice of the application on the owner and occupier of the land over which a servitude is sought and on any other persons known to be interested in the land.

            (3) Any interested person may notify the Water Registrar that he objects to the creation of the servitude under this section or that he desires to be heard on the subject of compensation.

            (4) The Board shall consider any objections made to the Water Registrar and shall give an opportunity of being heard to all persons who so require, and may thereafter by a certificate in the prescribed form create such servitude as it may consider appropriate or refuse to create a servitude and may make an ancillary order in connection therewith including provision for the payment of compensation:

            Provided that any interested party may appeal to the High Court against any order by the Board under this subsection awarding compensation or against any decision by the Board not to award any compensation except where such order or decision was made with his consent.

            (5) Where the water right in respect of which a servitude is created has been made appurtenant to the land of the holder of the water right, then a servitude created by the Board may be made appurtenant to such land as a praedial servitude but not otherwise.

            (6) If the person enjoying the benefit of a servitude fails to pay such compensation as directed or to construct any bridges and other works which the Board may require him to construct within such time as is therefor allowed by the Water Registrar, or fails to maintain or repair such bridges or other works after being required to do so by the Water Registrar, the Board may by notice in writing to that person and to the Registrar of Deeds determine the servitude.

            (7) Any compensation due under this section which remains unpaid may be sued for as a civil debt.

            (8) Any servitude created by agreement between the holder of a water right and any other person may be made appurtenant to the land of the holder of the water right as a praedial servitude where the water right in respect of which the agreement is made is appurtenant to such land:

            Provided that no such agreement shall operate to create a servitude appurtenant to the land unless a copy of the agreement has been forwarded to the Water Registrar by the holder of the water right.

            (9) Any servitude created in terms of this section shall be registered in the Deeds Registry within six months of its creation in such manner as may be prescribed, and unless it is so registered shall determine on the expiry of six months from the date of creation.

 

27.     Right to call for information

 

            The Water Registrar, or the Board, may in the exercise of their functions under this Act, call upon any person to give information on such matters and in such manner as may be prescribed.

 

28.     Power to inspect works and require reparation, etc

 

            (1) The Water Registrar and all persons authorized by him in writing may, at all reasonable times, enter upon any land and may inspect any works constructed or under construction thereon and may take measures to ascertain the quantity of water abstracted or capable of being abstracted by means of such works or otherwise.

            (2) If in the opinion of the Water Registrar any works are so constructed, maintained or used or are being so constructed, as to constitute a danger to life, health or property, he may require any person for the time being enjoying the benefit of those works to carry out such repairs or to effect such additions or modifications to such works or to carry out such demolitions or to change the use of the works in such manner as he may consider necessary and may by notice in writing suspend any water right until he is satisfied that such requirement has been fulfilled and thereupon the right shall cease for the period of the suspension.

            (3) No compensation shall be payable to the owner or occupier of any land by reason that entry has been made upon such land in pursuance of the provisions of subsection (1).

 

29.     Power to require demolition of unlawful works

 

            (1) The Water Registrar may by notice in writing require any person-

     (a)     who has constructed or extended or caused to be constructed or extended any works contrary to the provisions of this Act or to any other provisions not inconsistent with the provisions of this Act, under which such person was required or authorized to construct or extend the same or cause them to be constructed or extended; or

     (b)     whose water right or existing right in respect of which any works are in existence has been determined under the provisions of this Act or has otherwise come to an end,

to modify, demolish or remove such works within such period, not being less than 30 days, as may be specified in the notice.

            (2) If any person fails to comply with a notice served on him under subsection (1), it shall be lawful for the Water Registrar to cause such works to be modified, demolished or removed and to recover the cost of the modification, demolition or removal from the person in default by civil suit.

            (3) Failure to comply with a notice given under subsection (1) shall be an offence and the offender shall be liable to the penalties prescribed in section 37.

 

30.     Power to establish hydrological stations and make surveys

 

            (1) The Minister and all persons authorized by him may at all reasonable times enter upon any land for the purpose of making such investigations and surveys as the Minister may consider necessary in the interest of the conservation and best use of water in Botswana, and may establish and maintain on any such land, without other authority than this Act, hydrological stations and other works for the purpose of obtaining and recording information and statistics as to the hydrological conditions of Botswana.

            (2) No compensation shall be payable to the owner or occupier of any land by reason that entry has been made upon such land in pursuance of the provisions of subsection (1) but compensation shall be payable for all damage done and for any land occupied for the construction of works.

            (3) In the absence of agreement such compensation shall be determined by the High Court on the application of the owner or occupier or of the Minister.