Water Act, 1948

1. Short title

This Act may be cited as the Water Act.

2. Interpretation

In this Act, unless the context otherwise requires—"arbitration" means arbitration in accordance with the terms and provisions of the Arbitration Act;[Cap. 40]"local authority" means—(a)in the area of a municipal council, township council or mine township board, such council or board;(b)in any other area, the District Secretary for the District in which such area is situate;"owner", in relation to land, includes the President and a mortgagee or lessee;"primary use" means the use of water for domestic purposes and the support of animal life (including the dipping of cattle);"private water" means—(a)the water in a swamp, the boundaries of which are wholly within the boundaries of the land owned by any one landowner and which do not cross or abut against the boundaries of the said land and to or from which no stream extending beyond the boundaries of the said land flows, either continuously or intermittently;(b)the water in a spring which is situated wholly within the boundaries of the land owned by any one owner and which does not naturally discharge water into a water-course beyond the boundaries of the aforesaid land or abutting on its boundaries;(c)the water brought to the surface of such aforesaid land by artificial means;(d)flood waters which are impounded on the aforesaid land by artificial means and would otherwise have run to waste;"public stream" means either—(a)a water-course; or(b)a drainage depression; or(c)a dambo of natural origin;forming part of a natural drainage system, wherein water flows in ordinary seasons where such water is not private water and whether or not—(i)such water flows visibly on the surface;(ii)such water-course, drainage depression or dambo is dry during any portion of the year; and(iii)the conformation thereof has been changed by artificial means;"public water" means all water flowing or found in or above the bed of a public stream, whether visible or not, including lakes, swamps or marshes forming the source of such a stream or found along its course;"right of abutment" means the right to occupy by means of a dam or weir the bed or banks of a public stream or land adjacent thereto owned by another;"right of passage" means the right to occupy so much land belonging to another as may be necessary for or incidental to the passage of water, and shall include a right to construct works necessary for such passage on such land, and over, under and alongside other work, or to enlarge or extend any existing works;"right of storage" means the right to occupy land belonging to another by submerging it with water by means of a dam or weir or by other works, and shall include the right of passage over the land and along the boundary of and through the particular area subject to the right for the purpose of maintaining and cleansing such works, or for any other purpose necessary for the effective enjoyment of the right;"secondary use" means the use of water for the irrigation of land and pisciculture;"secretary" means the secretary of the Water Board;"tertiary use" means the use of water for mechanical and industrial purposes or for the generation of power;"water" includes public and private water;"Water Board" means the Board established by the Minister under section twenty-three;"Water Officer" means the officer appointed for the prescribed purposes;"Water Registrar" means the officer appointed for the prescribed purposes;"works" means a canal, channel, reservoir, embankment, weir, dam, well, borehole or other work constructed for or in connection with the impounding, storage, passage, drainage or abstraction of water, or for the development of water power or the use of water for industrial, mechanical or any other purpose or for the conservation of rainfall, and shall include any land occupied for or in connection with the impounding, storage, passage, drainage, power development or any other use of water, or any area occupied or acquired or held for the purpose of irrigation or drainage; and any gauge posts, measuring weirs and other appliances erected or used for undertakings or services authorised by this Act.[As amended by Nos. 5 and 39 of 1950, S.I. No. 55 of 1964 and No. 69 of 1965]

3. Exclusion of Western Province, Zambezi and Luapula Rivers and portion of Luangwa River

This Act shall not apply to—(a)the Western Province;(b)the Zambezi River;(c)the Luapula River;(d)that portion of the Luangwa River which constitutes the boundary between Zambia and Mozambique.[As amended by S.I. No. 55 of 1964]

4. Administration of this Act

There shall be—(a)a Water Officer who shall be a public officer, and who shall be the technical adviser to the Water Board;(b)a Water Registrar who shall be a public officer, and who shall be responsible for the registering and recording of all water rights acquired prior to the commencement of this Act and of all water rights acquired under this Act;(c)such other public officers as may be necessary for the proper carrying out of the provisions of this Act, and such officers shall be subject to the direction and control of the Minister.[As amended by No. 5 of 1950 and S.I. No. 55 of 1964]

5. Ownership of all water vested in President

The ownership of all water is vested in the President. The use, diversion and apportionment of all water shall be made in terms of this Act:Provided that a landowner shall have the right to take free of charge such private water occurring on his land as he may need for his own primary, secondary or tertiary use.[As amended by S.I. No. 55 of 1964]

6. ***

[Obsolete][As amended by G.N. No. 277 of 1964]

7. Provisions of sections 8 to 13 apply to use of water for purposes other than mining, railway or urban

Subject to the general provisions of this Act, the following sections, numbered eight to thirteen inclusive, shall apply especially to the use of water for purposes other than mining, railway or urban.

8. Primary use

Any person shall have right to the primary use of public water which is found in its natural channel or bed at such places to which access may be lawfully had.

9. Application by owner of land for public water for primary, secondary or tertiary use

Any person may make application to the secretary for permission to impound and store or divert water from a public stream for primary, secondary or tertiary use, and the Water Board may grant such application on such terms and conditions as it may think fit:Provided that any such grant is made with reasonable regard to the primary use of water and any existing rights lawfully granted for any other purpose.[As amended by Nos. 5 and 39 of 1950]

10. Application by owner of land for private water for secondary use

Any owner of land may make application to the secretary for the use of private water surplus to the needs of the owner of the land upon which such water occurs, and the Water Board may grant such application on conditions which will secure to the owner of the land upon which the water occurs his existing rights and a reasonable return for any capital expense incurred or work performed by him in making such water available:Provided that no such right to the use of private water shall be granted unless the Water Board is satisfied that the applicant cannot obtain by reasonable means on his own property water adequate for his requirements.[As amended by No. 5 of 1950]

11. Acquisition of special rights in respect of public water for secondary use

12. Acquisition of special rights in respect of public water for tertiary use

The Water Board may, under such conditions as it may deem fit, by special written authority, authorise any person who has made application according to the provisions of section nine to use public water for tertiary use in respect of any undertaking of public importance or general utility, the carrying out of which would, in its opinion, result in public advantages outweighing the disadvantages, subject to the payment of compensation to any holders of existing secondary or tertiary water rights which may be prejudiced thereby of such amount as may be mutually agreed upon or, failing agreement, as may be determined by arbitration.[As amended by No. 14 of 1955]

13. Safeguarding of special rights

14. Provisions of sections 15 to 22 apply to use of water for mining, railway and urban purposes

Subject to the general provisions of this Act, the following sections, numbered fifteen to twenty-two inclusive, shall apply especially to the use of water for mining, railway and urban purposes.

15. Application to use public water for mining purposes

16. Conditions governing acquisition of use of water for mining purposes

17. Application to use public water for railway purposes

Subject to the provisions of section nineteen, any person duly authorised to construct, equip, maintain or operate any line of railway requiring the use of public water for the working of such line of railway, for the supplying of passengers and livestock carried thereon, for the use of servants required in connection with such line and for other like objects, may be authorised by the Water Board to use such public water for all or any of the aforesaid purposes. Applications for such use shall be forwarded to the secretary and shall be accompanied by full particulars of the proposed user.[As amended by Nos. 5 and 39 of 1950]

18. Conditions governing acquisition of use of water for railway purposes

19. Railway prior rights reserved

The rights in respect of any water conferred upon any person duly authorised by any written law enacted prior to the commencement of this Act to construct, equip, maintain or operate any line of railway, or created by any agreement made with the Government prior to the commencement of this Act, are hereby preserved.[As amended by S.I. No. 55 of 1964]

20. Power of entry on land to implement rights

For the purpose of making the grant of any water right for railway purposes effective and available, the holder of such grant may, with such animals, vehicles or implements as may be necessary, enter upon any land and construct, maintain and repair such works as may be necessary and proper. Save in cases of emergency, such entry may be made only with the approval of the Water Board, and after notice to the occupier, if any, of the land.

21. Application to use public water for urban purposes

Whenever a local authority desires to appropriate any public water for primary or tertiary purposes necessary to the community under its jurisdiction, such local authority shall, in the absence of any special law authorising such appropriation, make application to the secretary, setting out such particulars of the proposed appropriation as may be required by the secretary or as may be prescribed.[As amended by No. 5 of 1950]

22. Conditions governing acquisition of use of water for urban purposes

If the public water applied for under the last preceding section is being beneficially used for secondary or tertiary purposes by any other person by virtue of any right granted under this Act or any other written law or by agreement with the Government, the use required by the local authority may be authorised by the Water Board to the extent it may deem fit on payment of compensation to such other person after full inquiry as hereinafter provided.[As amended by S.I. No. 55 of 1964]

23. Establishment of Water Board

24. Procedure on applications

25. Consideration by Water Board

26. Public inquiries

27. Order by Water Board

The Water Board may, in its discretion, after a public inquiry—(a)grant or refuse an application in whole or in part;(b)attach any conditions to the granting of an application;(c)award compensation to affected registered owners of water rights;(d)revoke, vary or amend any registered water right in respect of the public water concerned in the application then before the Water Board:Provided that the powers of revocation, variation and amendment shall not be exercised unless the affected registered holders of water rights consent, or unless the applicant pays such compensation as the Water Board may award to such registered holders;(e)make such order as to costs as it shall deem just.[As amended by G.N. No. 277 of 1964 and No. 69 of 1965]

28. Survey or investigation of rights affected

If before or during any public inquiry it appears to the Water Board that it will be necessary for survey or investigation to be made of any land or water or works alleged to be affected by the application, the Water Board may order either the applicant or any person lodging any objection to the application to cause such survey and a plan thereof to be made, or may direct an engineer nominated by the Water Board to make such survey and plan or investigation.

29. Appeals

Any person aggrieved by a decision of the Water Board may, within thirty days, appeal to the High Court against such decision.

30. Arbitration to assess compensation

31. Order of Water Board

As soon as the secretary has received from the applicant such written agreement to accept the compensation, or notification of agreement to submit the question of compensation to arbitration in respect of all affected registered holders, the Water Board may then issue the necessary order granting the water right to the applicant.[As amended by No. 39 of 1950]

32. Renewal of water rights

33. Revision of order on subdivision of land

34. Registration of order

Every order granting, renewing or revising a water right under this Part shall be registered by the applicant with the Water Registrar within three months of the date thereof in the prescribed manner and on paying the prescribed fees.[No. 39 of 1950]

35. Publication of water rights

The secretary shall in the months of June and December of each year cause to be published in the Gazette a list of the names of the persons to whom water rights have been granted during the preceding half-year and shall specify the public water in respect of which such rights may be exercised and the quantity of water which may be taken.[No. 39 of 1950]

36. Water right not to include easements

The grant of any water right to a person shall not be deemed to authorise the exercise of any easement or other right on or over the land of another person. Where any such right is required, the same may, in the absence of agreement between the parties, form the subject of an application under Part V.[No. 39 of 1950]

37. Acquisition of right of storage, passage or abutment

Any person having a right to the use of water or being entitled to supervise or control the use of water may be granted temporarily or for a term of years at the discretion of the Water Board a right of storage of water, a right of passage or a right of abutment, or all or any such rights and all such other rights as the Water Board may deem necessary for the exercise by such person of his right to the use of such water:Provided that—(i)the period of temporary right shall either be for a definite period of time, or for so long as it is used for the purpose for which it is granted, with or without further specifications of the period;(ii)no proceedings shall be taken for the acquisition of any right while applications for the right to the use of the water in respect of which the right is claimed are still under consideration by the Water Board;(iii)no such right shall give the person acquiring it a proprietary interest in respect of the area on, over or through which it is exercised and no encumbrance attaching to such area shall be affected thereby.[As amended by No. 39 of 1950]

38. Right of entry

The grant of any rights under this Part shall include the right of entry for the purposes of survey and for all other purposes necessary to secure the same.[As amended by No. 39 of 1950]

39. Right of storage

40. Right of passage

41. Right of abutment

42. Right to take materials

Every person exercising a right under this Part shall, subject to the provisions of the Mines and Minerals Act, have the right to take stones, sand, earth, gravel or clay from the land over which the right exists for the purpose of constructing, maintaining or repairing any irrigation works thereon:Provided that no such materials shall be taken from land within four kilometers of any house, or from any other structure, mine, open quarry or cultivated lands without the permission of the owner thereof.[Cap. 213]

43. Liability of persons having interest in works

Any person who, by paying a proportion of the cost of constructing any irrigation works, as provided in sections thirty-nine, forty and forty-one, has acquired the right to the same, shall be liable to pay a like proportion of the cost of its maintenance and repair, unless or until exempted therefrom by agreement or order of the Water Board.

44. Liability of persons constructing works

Every person who, under the provisions of this Part, constructs works for the passage of water, which—(a)prevent any owner passing freely over or on to any area of which he is the owner; or(b)check the circulation of water in the irrigation or drainage of any area or interfere with the mining thereof;shall construct and maintain in repair—(i)such bridges and other works as will make communication safe and convenient; and(ii)such culverts, aqueducts and other works as are necessary to secure the free circulation of such water or prevent interference with such mining;unless he shall be exempt from such duty by agreement or other lawful cause.

45. Registration of water rights

All rights granted under this Part shall be registered by the applicant with the Water Registrar within three months of the date of granting thereof and in the manner and on paying the fees prescribed, and, in addition, all such rights which affect land shall be registered by the applicant with the Registrar of Lands and Deeds within the time and in the manner and on paying the fees provided by the Lands and Deeds Registry Act.[Cap. 185]

46. Regulations

The Minister may, by statutory instrument, make regulations for the effective administration of this Act, and without prejudice to the generality of the foregoing may make regulations to carry out all or any of the following matters:(a)establishing and maintaining hydrographic stations on any private land and erecting gauging weirs, gauging poles or any other devices for the measurement of water and may obtain and record observations made at such hydrographic stations and the owner of the land on which such hydrographic stations are established shall not be entitled to any payment or compensation in connection therewith, if any existing works for the beneficial use of water, the right to which has been registered or authorised under this Act, are not thereby adversely affected;(b)obtaining and recording information as to the extent of land in Zambia under irrigation, the quantity of water used for the same, and the amount, nature and value of the crops raised thereby, and generally obtaining and recording information and statistics as to the hydrographic conditions of Zambia;(c)inspecting any works on the course of any public stream and ordering any person to do such acts and execute such repairs with respect to his works as may be deemed necessary in the public interest and, in default of compliance within the time specified in such order, executing the same and recovering the cost of such execution from the person making such default;(d)exercising general supervision over all public streams in Zambia, protecting the source of supply of any public stream, and, if he deems it necessary or expedient, causing the channels of such stream to be cleansed, deepened, widened or otherwise improved; preventing the leakage or flow of any public stream from the surface into subterranean channels; preventing any waste or any unlawful diversion, abstraction, storage or use of public water; causing to be removed any obstruction unlawfully placed in a public stream, and preventing any unlawful act calculated to diminish the quantity of water in any part of a public stream;(e)supervising and regulating the diversion, storage, distribution and use of water in any public stream;(f)investigating any existing or potential source of water power;(g)for the purpose of protecting any source of supply of any public stream, by statutory notice, defining the area of such source and prohibiting or restricting the entry of persons into such area;(h)requiring persons to whom the right to use water has been granted under this Act to erect adequate diversion sluices at their own expense, and to record and furnish measurements as to the volume of the water abstracted or allowed to pass at or near the point of abstraction by the use of instruments specified or supplied for the purpose.[As amended by G.N. No. 277 of 1964]

47. Power of entry upon property

48. Preservation of existing rights

Except as hereinafter provided by sections fifty and fifty-one, nothing in this Act shall interfere with or derogate from any rights lawfully acquired before the commencement of this Act in so far as actual use has been made of such rights or the priority of such rights inter se.[As amended by No. 5 of 1950]

49. Registration of existing rights to secondary or tertiary use

50. Rights to be void for want of registration

Any water right or appurtenant right required to be registered by any of the provisions of this Act and not registered within the proper time shall be null and void.

51. Forfeiture of rights

52. Service of notices, orders, etc.

Any notice, order or other document required by this Act to be given to or served upon any person shall be deemed to be effectively served if delivered personally to such person or left at his abode or place of business, or sent by registered letter to his address or, if such person is absent from Zambia and has left no known representative, by publication in the Gazette. Service upon a person authorised to represent another shall be deemed to be service upon the person whom he represents, and, in the case of a company or syndicate having no domicile or office in Zambia, any person in charge of its property shall be deemed to be its representative:Provided that nothing in this section shall prevent any person who has not been personally served with a notice, order or other document from proving that, through no fault of his own or of his representative, such notice, order or other document never came to his knowledge.

53. Offences and penalties

Any person who, without lawful right or authority—(a)alters, enlarges or obstructs any works, or destroys, defaces or moves any level marks, beacons or other structure or appliance erected or made in conjunction with such works;(b)takes for purposes other than primary use, any public water, unless authorised in terms of this Act or in the exercise of a legal right existing at the commencement of this Act;(c)interferes with or alters the flow of the water of any work or of a public stream, or interferes with the distribution of such water, or, after notice to refrain from doing so, takes more water than he is entitled to, or uses it in a manner contrary to this Act or any regulations made thereunder;(d)while using or being liable for the maintenance of any works, to the prejudice of others, wastes or does not take due precaution to prevent the waste of water from such works, or fails properly to maintain the works and keep them in repair;(e)wastes public water;(f)aids or abets or knowingly permits any such act or default;shall be guilty of an offence and liable—(i)in the case of a first offence, to a fine not exceeding five hundred penalty units or, in default of payment, to imprisonment with or without hard labour for a period not exceeding six months, or to both;(ii)in the case of a second or subsequent offence, to a fine not exceeding three thousand penalty units or, in default of payment, to imprisonment with or without hard labour for a period not exceeding one year, or to both.[As amended by Act No. 13 of 1994]

54. Wilful or malicious acts

Any person who wilfully or maliciously commits any of the offences mentioned in paragraph (a) or (b) of section fifty-three shall be liable to a fine not exceeding fifteen thousand penalty units, or to imprisonment with or without hard labour for a period not exceeding two years, without the option of a fine.[As amended by Act No. 13 of 1994]

55. Pollution

Any person who wilfully or through negligence pollutes or fouls any public water so as to render it harmful to man, beast, fish or vegetation shall be guilty of an offence and liable—(a)in the case of a first offence, to a fine not exceeding six thousand penalty units or, in default of payment, to imprisonment with or without hard labour for a period not exceeding one year, or to both;(b)in the case of a second or subsequent offence, to a fine not exceeding twelve thousand penalty units or, in default of payment, to imprisonment with or without hard labour for a period not exceeding two years, or to both.[As amended by Act No. 13 of 1994]

56. Failure to prevent pollution

57. Breach of condition

Any person who contravenes or fails to comply with any condition attached to the grant of a right under this Act shall be guilty of an offence:Provided that no person shall be convicted of an offence under this section for the breach of a condition which is capable of being remedied unless he has been given a reasonable opportunity to remedy such breach and has failed to do so.[No. 39 of 1950]

58. Penalty where none expressly provided

Any person who commits an offence against this Act or any regulation made hereunder, for which no penalty is expressly provided, shall be liable on conviction to a fine not exceeding seven hundred and fifty penalty units or, in default of payment, to imprisonment with or without hard labour for a period not exceeding six months.[As amended by Act No. 13 of 1994]

59. Inquiry into damage sustained