6.       Water Authority to acquire rights to water and to construct and manage works for supplying water

            (1) Subject to the provisions of this section, a Water Authority shall for the purpose of securing an adequate supply of water to the inhabitants of the waterworks area acquire rights to take water, and construct, make, purchase, expropriate or take over, and manage, beyond as well as within the limits of the waterworks area, all such waterworks as may in the opinion of the Water Authority be necessary and expedient for the purpose of taking, impounding, appropriating, storing, conveying or supplying such water, and shall construct, make, purchase, expropriate or take over, and manage, such premises and servitudes as it may deem requisite for the purpose of such waterworks.

            (2) No property of any description, or interest therein or right thereover, shall be expropriated or taken over in terms of this section by a Water Authority without the agreement of every person entitled to such property, interest or right unless it is expropriated or taken over in the interests of public health or in order to secure the development or utilization of any property for the purpose mentioned in subsection (1).

            (3) Where any property is expropriated or taken over without such agreement adequate compensation shall be promptly payable by the Water Authority and any dispute as to the interest or right of any person in or over the said property, the legality of the expropriation or taking over, or the amount of any compensation to which any person may be entitled by reason thereof shall be determined in accordance, mutatis mutandis, with the provisions of the Acquisition of Property Act, and for the purpose of such determination and for the purpose of obtaining prompt payment of compensation any person having an interest in or right over the property shall have all the rights of access to the High Court provided in the said Act.

7.       Acquisition of existing waterworks

            (1) If on the declaration of a waterworks area an undertaking already exists in such area, the Water Authority shall have the right, in the interests of public health, town and country planning or land settlement or in order to secure the development or utilization of any property for the better supply of water to the community, of acquiring the undertaking by serving personally or by registered post on the owner of the undertaking, within six weeks of such declaration a notice setting out the appointed date for the acquisition of the undertaking.

            (2) The Minister shall, before the date of acquisition, make a vesting order having as from the date of acquisition such operation as is provided in subsection (3).

            (3) The vesting order shall operate as follows-

     (a)     so as to transfer and vest in the Water Authority without any conveyance, assignment or transfer whatsoever, free from all charges, encumbrances, rights or obligations of any nature-

           (i)       all the immovable property and corporeal movable property owned and used by the owner of the undertaking for the purpose of the undertaking at the date of the vesting order;

          (ii)       all the immovable property and corporeal movable property paid for by the owner of the undertaking and used or employed by him for the purposes of the undertaking at the date of the vesting order; and

          (iii)       such servitudes over land owned by the owner of the undertaking as the Minister may deem requisite for the purposes of the undertaking and specified in the vesting order;

     (b)     so as to transfer and vest in the Water Authority all book debts and other moneys owing to the owner of the undertaking on account of that undertaking at the date of the vesting order and the right to sue for, recover and give receipts for such debts and money; and

     (c)     so as to transfer to the Water Authority the rights and liabilities of the owner of the undertaking under any contract in respect of a work which is in the course of construction, extension or repair at the date of the vesting order.

8.       Duty of owner as to carrying on undertaking until date of acquisition

            (1) Where a notice in terms of section 7(1) has been served on the owner of an undertaking such owner shall, until the date of acquisition, carry on the undertaking in the ordinary course of business and maintain it in as efficient condition as it was in before the giving of the notice, and shall not without the previous consent in writing of the Water Authority given either generally or specially (which he shall apply for if it is necessary for the purpose aforesaid)-

     (a)     sell, dispose of or let or hire out for more than three months any immovable property or corporeal movable property owned and used or, having been paid for by such owner, used or employed by him for the purpose of the undertaking; or

     (b)     undertake any new works estimated to cost more than P1000 in all.

            (2) Where the Water Authority suffers any damage by reason of any contravention by the owner of the undertaking of subsection (1), the amount of such damage shall be deducted from the compensation payable in respect of the undertaking in terms of section 11.

9.       Information to be given, etc.

            (1) Where a notice in terms of section 7(1) has been served on the owner of an undertaking such owner shall-

     (a)     produce to an officer or agent of the Water Authority authorized by the Minister and permit such officer or agent to make extracts from and take copies of such books of account, records and other documents, and shall supply to such officer or agent such information as the officer or agent may reasonably require for the purpose of enabling the Water Authority to take over easily and without interruption the undertaking; and

     (b)     preserve all books of account, records and other documents relating to the undertaking until they are handed over to the Water Authority in terms of paragraph (a) or, if they are retained by the owner of the undertaking, until 12 months have elapsed after the date of acquisition.

            (2) Any person who contravenes the provisions of subsection (1) shall be guilty of an offence and liable to a fine not exceeding P400 or to imprisonment for a term not exceeding one year, or to both.

10.     Minister may authorize entry of waterworks, etc.

            (1) Notwithstanding section 8, where after the service of a notice in terms of section 7(1), the owner of the undertaking lessens or discontinues the supply of water to any premises otherwise than by reason of vis major or in the ordinary course of business or carries on the undertaking in such manner as is, in the opinion of the Minister, contrary to section 8(1), the Minister may authorize any officer or agent of the Water Authority to enter upon the premises of the undertaking and forthwith to do all such things as such officer or agent may consider necessary for the maintenance and continuation of the supply of water from the undertaking.

            (2) Such officer or agent shall work the undertaking for and on account of the owner of the undertaking and at his risk and expense, rendering the balance of the net revenue derived from the undertaking to the said owner.

            (3) No such entry shall prejudice or affect the security of any debenture holder or mortgagee or his right of enforcing such security.

            (4) The Minister shall not revoke any such authority before the date of acquisition, unless he is satisfied that the causes for which the authority was given have been removed.

            (5) Any owner or officer, servant or agent of such owner who refuses or fails to comply to the best of his ability with any lawful requirement of any officer or agent of the Water Authority in the exercise of his powers and the execution of his duties under this section shall be guilty of an offence and liable to a fine not exceeding P200 or to imprisonment for a term not exceeding six months, or to both.

            (6) Any person who-

     (a)     threatens, resists, hinders or obstructs, or uses foul, abusive or insulting language towards or at, any officer or agent of the Water Authority in the exercise of his powers and the execution of his duties under this section; or

     (b)     falsely holds himself out to be an officer or agent of the Water Authority,

shall be guilty of an offence and liable to a fine not exceeding P200 or to imprisonment for a term not exceeding six months, or to both.

11.     Compensation, determination of disputes, etc.

            (1) Adequate compensation shall be promptly payable by the Water Authority to any person having an interest in or right over an undertaking acquired in terms of section 7, and any dispute as to such an interest or right, the legality of the acquisition, or the amount of compensation to which such person may be entitled by reason of the acquisition shall be determined in accordance, mutatis mutandis, with the provisions of the  Acquisition of Property Act and for the purpose of such determination and for the purpose of obtaining prompt payment of compensation any such person shall have all the rights of access to the High Court provided in the said Act:

            Provided that the basis on which the amount of compensation payable to the owner of the undertaking shall be determined             shall be that stated in section 12 and not that stated in section 16 of the Acquisition of Property Act.

            (2) In determining the compensation to be paid under subsection (1) the Board of Assessment shall have regard to the following-

     (a)     the fair market value at the date of acquisition by the Water Authority of any immovable property, machinery, plant, apparatus, materials and works transferred to the Water Authority by operation of section 7(3)(a), due regard being had to the nature and condition of such immovable property, machinery, plant, apparatus, materials and works and to the state of repair thereof and to the circumstance that they are in such a position as to be ready for immediate working and to the suitability of the same for the purposes of the undertaking;

     (b)     the value as assessed by the Board of Assessment of any book debts and other moneys and of any rights and liabilities transferred to the Water Authority by operation of section 7(3)(b) and (c); and

     (c)     the excess over the amounts assessed under paragraphs (a) and (b) of the sum that in the opinion of the Board of Assessment represents the reasonable capital value of the net maintainable income that would in the opinion of the Board of Assessment accrue to the undertaking were it not purchased, after deduction from such net maintainable income of the estimated net income from any assets not acquired and interest derived from the investment of depreciation, renewal, reserve and other surplus revenue funds.

            (3) For the purposes of subsection (2) the net maintainable income of the acquired undertaking shall mean the annual income that in the opinion of the Board of Assessment would accrue to the owner of the undertaking after payment of all charges thereon (including any tax other than income tax to which the undertaking may have been liable) and in computing the net maintainable income of the acquired undertaking the Board of Assessment shall take into account-

     (a)     the past profits of the undertaking to the extent that they are shown in the audited accounts of such undertaking in respect of the last five complete financial years preceding acquisition or such shorter period as may have elapsed since the undertaking commenced business and to the extent that they are in the opinion of the Board of Assessment not excessive having regard to the following-

           (i)       the suitability of the amount of the charges for maintenance in relation to the physical condition of the assets;

          (ii)       the sufficiency of the provision made for depreciation of assets;

          (iii)       the adequacy of the provision made whether by way of sinking fund or otherwise in order to preserve the capital invested in the undertaking where the ability of the undertaking to carry on business is restricted by the terms of any agreement or concession, whether by way of a condition that all or any of the assets shall be surrendered, by a restriction upon the duration of the agreement or concession, or by any other means;

         (iv)       the appropriateness of the sums charged in respect of fees or other emoluments or remuneration of directors or partners;

          (v)       the adequacy of any other charges; and

         (vi)       the reasonableness of the rates of charge made by the owner of the undertaking for the supply of water to consumers provided that a maximum charge laid down by statutory authority shall not be regarded as any criterion;

     (b)     the fact that if the undertaking had not been acquired it would have been subject to statutory provisions relating to the fixing of prices and the limitation of profits; and

     (c)     the terms of any agreement or concession affecting the acquired undertaking.

            (4) For the purposes of subsection (2) the reasonable capital value of the net maintainable income shall be the capital sum which would in the opinion of the Board of Assessment yield an annual sum equivalent to the net maintainable income if invested in a business concern or otherwise in Botswana at such rate of interest (not being less than six per cent nor more than 14 per cent per annum) as in the opinion of the Board of Assessment is reasonable.

12.     How compensation to be paid

            (1) Compensation payable in respect of an undertaking acquired by the Water Authority under section 7 shall be discharged as soon as the amount has been agreed or otherwise finally determined under section 11, together with interest thereon at the rate of four per cent per annum as from the date of acquisition to the date of final payment:

            Provided that where any sum is paid or offered for payment by the Water Authority on account of such compensation such interest shall be payable on the amount of such compensation from the date of acquisition to the date of such payment or offer and thereafter on any balance to the date of final payment.

            (2) Where any undertaking acquired as aforesaid is subject to any mortgage or any other legal charge whatsoever, the compensation or such part thereof as may be sufficient to discharge the mortgage or other charge, shall be paid to the mortgagee or person in whose favour the charge operates, in satisfaction in whole or in part of the sum secured by the mortgagee or which is subject to the charge.

13.     Power of Water Authority to lay waterworks in public places

            (1) A Water Authority may, with the consent of the District Commissioner, lay down any waterwork in any public place, and may maintain, take up, renew, inspect, attend to, examine and test any waterwork laid down in a public place.

            (2) For the avoidance of doubt it is hereby declared that the ownership of a waterwork laid down in any public place in accordance with this section in no case vests or shall vest in the owner of such public place by prescription, inherence or in any other manner except with the written agreement of the Water Authority.

14.     Power of Water Authority on private land

            (1) A Water Authority may, after giving reasonable notice in writing to the owner or occupier, carry any service through, across or under any land whatsoever and may, at any time, upon giving such reasonable notice as circumstances permit, or in case of serious emergency without giving notice, enter upon any land for the purpose of repairing, maintaining, renewing, removing, altering, inspecting, attending to or testing any such service thereon, without paying any compensation but making good or at its option paying for damage done or occasioned through such operations:

            Provided that a Water Authority shall not enter upon any land in the exercise of any powers conferred by this section except in the interests of public health or in order to secure the development or utilization of any property for the better supply of water to the community.

            (2) For the avoidance of doubt it is declared that the ownership of a service carried through, across or under any land in accordance with this section in no case vests or shall vest in the owner of such land by prescription, inherence or in any other manner except with the written agreement of the Water Authority.

            (3) Any such service as is referred to in subsection (2) shall be immune from a landlord's hypothec and from execution levied or attachment laid on property of the owner or occupier of the land in question.

15.     Power of Water Authority to enter premises for inspection and to supervise proper use of water service

            (1) A Water Authority may for any of the purposes mentioned in this section at any time between sunrise and sunset, or in the case of urgency at any other time, enter upon any premises into, upon or under which any service or meter connected with the waterworks is or is being fixed-

     (a)     to inspect any such service laid or fixed or being laid or fixed and to ascertain whether there is or is likely to be any waste, leakage, obstruction, damage or pollution or misuse of water in connection therewith and to ascertain whether such service complies with the terms of this Act relating thereto;

     (b)     to fix, inspect, read, check, clean or remove or replace any meter or similar appliance of the Water Authority used or to be used in connection with the supply; and

     (c)     to disconnect the supply of water from any premises or to diminish, withhold or divert the supply of water through or by means of any service wholly or in part.

            (2) A Water Authority for the purposes of ascertaining whether any offence has been committed in connection with any water which it is entitled to take, may enter upon any premises and take samples of any material or effluent which in its opinion may cause pollution of such water.

16.     Power of Water Authority to curtail or withhold supply of water

            Without prejudice to the recovery or retention of any charges, meter rent, or other sums of money due or to become due under the provisions of this Act, a Water Authority may in its discretion diminish, turn off or divert the supply of water to any premises or place whenever-

     (a)     any money due to any such Water Authority in respect of the supply of water to such premises or place has remained unpaid for a period of 14 days after service, which may be effected by post, on the person supplied of an account showing such moneys to be due; or

     (b)     the person supplied at such premises or place has failed to comply with any of the requirements of this Act; or

     (c)     such diminution, turning off or diversion is necessary to enable repairs, maintenance or extensions of the water system to be carried out; or

     (d)     there is a shortage of water.

17.     Water Authority may prohibit use of water for specific purposes

            A Water Authority may from time to time-

     (a)     by order published in the Gazette prohibit generally throughout the waterworks area the use of water for any purpose or purposes specified in the order; or

     (b)     by written notice to any consumer or consumers prohibit the use of water by such consumer or consumers for any purpose or purposes specified in the notice.