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Judgment reserved in WUC, Phakalane P4 million suit

Publishing Date : 07 April, 2015

Author : GODFREY RAMAHOSI

PHAKALANE MANAGING DIRECTOR: Lesang Magang


Lobatse High Court Judge, Mercy Garekwe on Tuesday reserved judgment until July 31, in a case in which Phakalane Estates is suing Water Utilities Corporation (WUC) P 4 451 556.58 in damages for the construction of a water storage facility.


According to documents filed with the High Court, Phakalane Estates constructed and paid for a primary network consisting of a ground storage reservoir, elevated storage reservoir, associated pumps, equipment and trunk main from such storage to secondary network at its own costs which according to the plaintiffs was in breach of the tacit term of the agreement entered into between Phakalane and WUC for the design and construction of the onsite water reticulation.


In the final submissions the plaintiff emphasized that since the storage was primary in nature, it must be paid by WUC and that the provisions of Section 18 of the Waterworks Act regulated the provision of water to Phakalane and its residents, contrary to the defence’s argument that Section 18 of the Waterworks Act does not impose any liability in the case and that the Phakalane storage is not primary.


Section 18 of the Waterworks provides that, “the minister may, after consultation with the corporation, give the corporation such directions of a general or specific character as to the exercise and performance of its powers in fulfilling its functions as are necessary as a matter of public policy and as are not inconsistent with this Act nor with the contractual and other legal obligations of the corporation, then the corporation shall give effect to any such direction”.


Advocate Andrew Redding, representing Phakalane emphasized that Phakalane residents were not different from any other person residing in other parts of Gaborone. “There is no basis upon which the residents of Gaborone ought to be treated differently simply because of the area in which they reside, or because of the identity of the developer in their area,” he said.


He cited that if an analysis had been done at the time of the extension of the water supply network at Phakalane, it would result in every consumer’s tariff going up by 50%, then WUC would be entitled to look to Phakalane (the developer) to finance that cost by invoking section 18(3). “It would be entitled to do so in respect of any developer, whether a private developer or any other parastatal such as Botswana Housing Corporation,” said Redding.


Redding further questioned the legal obligation binding the developer to pay for the water storage. “WUC gets revenue by charging a water tariff to the consumer, each user has a meter and that is how it charges each,” said Redding.


According to the defendants’ heads of arguments, it is the function of the defendant (in terms of section 14 of the Water Utilities Act Cap. 74:02 to ‘supply water in bulk or otherwise’ to areas including the Township (that is Phakalane) and to ‘do all such things as may be necessary or advantageous in order to secure adequate supplies of water for the performance of its function.


Phakalane Estates (Pty) Ltd is wholly owned by David & Dorcas Magang and their children, Lesang, Thola and Bonang Magang. They together with Mr. S. Parthiban are all active directors of the company and/or its subsidiaries.


Phakalane Estates was represented by Advocate Andrew Redding SC and Tremayne Dalrymple while Water Utilities Corporation was represented by Advocate K. J Trisk SC and Advocate R. L, the parties will convene for judgment on the 31st of July at Lobatse High Court before Jugde Mercy Garekwe. 

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