The Water Bill, 2001

This is a draft Water Bill and is is a working document and not a formal document. As such it should not be interpreted as the policy of the Government of Swaziland until it has been finally agreed and adopted by Cabinet and His Majesty as national legislation.

CONTENTS | PART I - PRELIMINARY | PART II - NATIONAL WATER AUTHORITY | PART III - INTERNATIONAL WATER BODIES | PART IV - WATER APPORTIONMENT BOARD | PART V - PERMIT FOR THE USE OF WATER | PART VI - GROUND WATER | PART VII - SERVITUDE | PART VIII - CONTROL OF POLLUTION | PART IX - WATER SPORT CONTROL | PART X - IRRIGATION DISTRICTS AND WATER USERS ASSOCIATIONS | PART XI - PROJECT BOARDS | PART XII - MISCELLANEOUS

PART VII SERVITUDE

Exclusion of Swazi Nation Land

52. This part of the Act does not apply to servitudes over Swazi Nation Lands except as specifically provided in Section 61.

Acquisition of servitude

53. (1) A holder of a permit or holder of an effluent control permit or a person who intends to use water for a primary purpose may acquire by agreement, or subject to the provisions of Section 58 by application, a servitude over the land of another person in order to enjoy the benefits of the permit or any rights under this Act.

(2) A servitude may be in perpetuity or temporary, but a temporary servitude shall be for a period not longer than three years.

Power of entry upon land and mode of acquiring servitude

54. (1) Any person who requires a servitude may, not earlier than sixty days after giving a written notice to the proprietor of the land in question and to the Board, enter upon that land and make any investigations and undertake any operations thereon which that person may consider necessary for the purpose of determining the extent and nature of the servitude required, and, in the exercise of such powers of entry, such person may:

(a) search, dig, excavate, bore or carry out any works or investigations which may be necessary for the discovery, gauging or measurement or the establishment of the chemical composition of any water rising from spring, well or fountain, or flowing in any river, watercourse or channel;

(b) take any steps necessary to determine the levels, direction or flow or chemical composition of any water contained or flowing in any underground reservoirs or channels; and

(c) search, dig, excavate and carry out any works necessary to determine the suitability of any site for the construction of storage or other works in relation to the supply of water or the disposal of effluent or waste:

(2) Not withstanding the provisions of sub-Section (1), a person shall not enter into any building or upon any enclosed space attached to a dwelling, except with the consent of the occupier thereto.

(3) In the exercise of the powers under subsection (1) as little damage as possible shall be caused, and such compensation as may be agreed upon or failing agreement, determined by the Board, shall be paid by the person causing the damage for all damage so caused or otherwise the person shall repair any damage.

(4) Any person referred to in subsection (1) shall, in any notice to the proprietor claiming a servitude, set forth, according to the nature of the servitude:

(a) the point of diversion which is proposed;

(b) the line of passage along which the water is to be conducted or diverted;

(c) the locality on which the water is to be stored and the approximate area which will be submerged;

(d) the nature and locality of any works which it is proposed to construct;

(e) the location and area of any land required for the disposal of waste or effluent;

(f) the quantity and nature of the material required from the land for the purpose of constructing works and the place from which it is proposed to take such material;

(g) the land required temporarily for construction camps and permanently for the residence of persons and for workshops or storage purposes necessary in connection with the operation and maintenance of the works in question;

(h) the compensation which is offered, if any, and manner in which such compensation has been assessed; and

(i) whether a temporary or permanent servitude is required and, if temporary, the period of time during which the person wishes to enjoy the servitude; and shall attach to the notice a plan showing the position, locality and nature of any proposed works in respect of which that servitude is claimed.

(5) If the proprietor does not, within one month after the service of a notice claiming a servitude, agree to the claim, or to any particulars stated in the notice, or to any other matter necessary for the servitude, and consent to the embodiment of such particulars and other matters in a deed of agreement and to execute such deed by a notary, the claimant may apply to the Board for the settlement of the several matters in dispute.

(6) The person claiming a servitude shall, when serving notice thereof upon the proprietor of the land affected, transmit by registered post to any mortgagee and to every person shown upon the title deed of such land or in the records of any Government office in which rights granted under any law relating to prospecting or mining are recorded, to have any interest in such land and whose whereabouts can readily be ascertained, a copy of that notice and of every annexure thereto.

Rights conferred by servitude

55. (1) A servitude obtained under this Act, unless the agreement specifically provides to the contrary, shall include the right for the holder to -

(a) occupy and use so much of the land of another as may reasonably be required for the construction, reconstruction, operation, maintenance, repair, or improvement of works for diverting, storing, or using water, or for the drainage of land;

(b) take and remove from the land within the boundaries of the servitude any material or substance which may not be required for the works;

(c) bring onto the land within the boundaries of servitude any material or substances which may be required for the works;

(d) cut down, remove or destroy any tree, vegetation, rocks or other obstruction which may be a danger to the works, subject to any applicable law;

(e) construct, maintain and occupy residences, workshops or storage facilities which may be required for employees of the permit holder in order to operate and maintain the works;

(f) secure an obligation by the proprietor of the land over which the servitude is obtained not to do or permit others to do anything, inside or outside the boundaries of the servitude, which may in any way endanger the security of the works or interfere with the enjoyment by the owner of his rights under the permit; and

(g) secure for a temporary servitude, the right to construct, maintain and remove all camps, access roads or other facilities reasonably required for the construction, reconstruction, repair or improvement of the works.

(2) Subject to any applicable law, the holder of the servitude may in addition to rights under the servitude cut down any tree or remove any rock or other object which may be or may become a danger to the security of the works whether such tree, rock or other object is within or without the boundaries of the servitude.

(3) Upon the application of the proprietor or permit holder the Board shall determine whether in exercising rights under subsection (2), the permit holder shall pay compensation to the proprietor for any tree, rock , or other object removed and for any damage caused in such removal.

Use by servient proprietor

56. If the proprietor of the land over which a servitude is obtained is also a permit holder, that proprietor may also use the works constructed on such servitude for the benefit of that proprietor, provided the proprietor pays a proper proportion of the costs of construction, reconstruction, operation, maintenance, repair, or improvement of the works, and provided further that the use made of the works by the proprietor does not prevent or hinder the owner of the servitude from exercising the rights to the full benefit of that permit of the owner of the servitude.

Crossing Roads, etc.

57. A servitude to cross a public road, a railway, or surface or underground installation of any public utility or local authority shall include a requirement that the permit holder obtain the consent of the entity owning or controlling such road, railway line, or installation as to the nature of the works and the methods of construction, operation, and maintenance of the works.

Application for servitude

58. (1) If the holder of a permit or holder of an effluent control permit or a person who intends to use water for a primary purpose and the proprietor of the lands over which a servitude is required cannot reach agreement as to the terms and conditions of the servitude or the compensation to be paid, the permit holder or such other person may apply in writing to the Board for authority to expropriate a servitude. The applicant shall serve a copy of such application on the proprietor of the land over which the servitude is required.

(2) If a servitude is granted by agreement, the grantee of the servitude shall submit to the Board a certified copy of such agreement and the terms of compensation if any.

(3) The Board shall in terms of Section 30, hold a hearing on the application within sixty days and may grant a servitude containing such terms and conditions, and on payment of such compensation, if any, as the Board deems appropriate or it may refuse the application.

(4) The holder of a permit or holder of an effluent control permit or a person who intends to use the water for primary purposes may not exercise any rights under the servitude granted by the Board until there has been an agreement on or determination of the terms of payment of the compensation awarded by the Board.

(5) Upon satisfaction that the terms of subsection (2) or (4) on compensation have been fulfilled, the Board shall send a certified copy of the grant to the Registrar of Deeds in terms of Section 30 (9).

(6) The Registrar of Deeds shall make a notation of the servitude against the title deeds of the land subject to the servitude and in favour of the lands to which the permit is appurtenant.

Claims of misuse

59. (1) If any dispute arises between the owner of a servitude and the proprietor of the land subject to the servitude arising in any way out of the alleged use or misuse of the terms and conditions of the servitude or out of any damage alleged to have been incurred by either party from the wrongful or negligent act or failure to act of the other, the aggrieved party may appeal in writing to the Board and shall serve the other party with a copy of the appeal.

(2) The Board shall hold a hearing and shall inquire into the matter and shall make such order as it deems appropriate.

Person acquiring servitude to construct access bridges, etc.

60. Every person who constructs works for the passage, drainage, diversion or disposal of water which prevent any land being passed over freely or onto by the owner of the land, or which check the circulation of water in the irrigation or drainage of such land, shall at the expense of the person construct and maintain and repair such bridges and other works as will make passage or other communication reasonably safe and convenient, and such culverts, aqueducts and other works as are necessary to secure the free circulation of such water, unless that person be exempt from such duty by agreement or otherwise.

Servitude over Swazi Nation Land

61. (1) If a holder of a permit or holder of an effluent control permit or a person who intends to use the water for a primary purpose wishes to obtain a servitude, whether temporary or permanent, over Swazi Nation Land that person shall first obtain the agreement of the Minister as to terms and conditions of the servitude requested and the compensation payable, if any.

(2) The Minister may direct the permit holder or the primary purpose user to apply to the Board as provided in Section 53.

(3) In the event of failure to reach any agreement and upon receipt of the application by the Board, the Board shall hold a hearing into the matter.

(4) After the hearing the Board shall recommend to the Minister whether a servitude should be granted and, if so, the terms and conditions thereof and the amount of compensation payable:

(a) if the servitude is a temporary servitude, the Minister may grant the servitude on such terms and conditions as the Minister deems fit.

(b) if the servitude is to be a permanent servitude, the Minister may, with the specific written consent of the Ngwenyama, grant such servitude upon the terms recommended by the Board or on such other terms as the Ngwenyama may require.