Phakalane Estates has lost its appeal case against Water Utilities Corporation (WUC).
The estate sought the Court of Appeal (CoA) to hold the national water utility liable for footing the bill of setting up infrastructure at its environment.
The Court dismissed the claim. It ordered Phakalane to pay 70 percent of the costs. The dispute, which arose more than 20 years ago, was with respect to who should bear the costs of the infrastructure which was installed to provide water to Phakalane area located in Gaborone North.
The infrastructure in question allows the residents of Phakalane suburb to be supplied with water. Phakalane is private property belonging to the Magang family which they developed into a township by selling plots for many years. It was later incorporated into Gaborone.
Phakalane paid for the infrastructure when Phakalane was developed and sued for a refund arguing that WUC was responsible for the costs as a matter of law and based on an agreement that the parties had reached.
Water Utilities was found to have acted within the law and the Corporation’s own policies in requiring Phakalane to bear the costs of this infrastructure according to the judgment.
Phakalane had sought to argue that the costs of the water works in question were excessive in relation to amounts charged by Water Utilities for water supply. The Court found that Phakalane’s seemingly reneging on its agreement with WUC was based more on the unexpected high costs of the infrastructure, rather than on real disagreement with the principle.
Both the High Court and the Court of Appeal were satisfied on the evidence led that Phakalane had been aware of what it was agreeing to at the beginning of the agreement and had left it too late in the day to now change its mind.
“The entering into that agreement was preceded by lengthy negotiations between the parties and correspondence spanning well over a year.”
Phakalane had also appealed to the Minister before first taking the matter to Court.
In a letter from then Minister responsible for water, dated 9th July 1993, government responded and stated: “The corporation’s policy has been in existence since its formation in the early 1970s and has been applied consistently to government and private estates developments alike. In respect of water suplly Phakalane Estates and other developers in the northern part of Gaborone, I would like to assure you that the Corporation has acted within the policy”.
Water Utilities on the other hand has been ordered to pay Phakalane a reimbursement value for a plot allocated to WUC at Phakalane, where some of the infrastructure has been built. Water Utilities has also been ordered to pay municipal rates to Phakalane, in respect of the plot in question.
The parastatal was represented by John Carr-Hartley from Armstrong Attorneys while Phakalane Estates was represented by Terence Dambe of Minchin and Kelly Attorneys.
The appeal ruling was passed by a panel of CoA Judges; Justice A. Tafa, Justice A. Dambe as well as Justice Lesetedi.