Fencing Act, 1949
- Commenced on 1 October 1949
- [This is the version of this document at 31 December 1996.]
1. Short titleThis Act may be cited as the Fencing Act.
4. Fence between lands of different owners to be at cost of eachThe owners of adjoining lands not divided by a sufficient fence shall be liable to join in or contribute to the construction of a dividing fence between such lands in equal proportions.
5. Notice to any person required to contribute towards construction of fenceAny person desiring any other person to contribute to the construction of a dividing fence under the provisions of section four may serve on such person a notice in writing to fence, which shall specify the boundary to be fenced and the type of fence proposed to be constructed, and shall contain a proposal for fencing the same.
6. Arbitration provided forIf within three months after the service of any notice to fence under the provisions of section five, the person serving and the person served with such notice do not agree as to the type of fence to be erected, and the position thereof, any of such matters as to which there is no agreement shall be settled by arbitration. In making any award, the arbitrator shall be guided, as to which type of fence such arbitrator may order or award to be constructed, by the minimum standard fence described in the Fifth Schedule.[As amended by No. 37 of 1953]
7. Construction of fence on failure to carry out agreement or awardIf the person serving and the person served with such notice agree as to the matters aforesaid relating to the construction of such fence, or if, in default of such agreement, an arbitrator is appointed and makes an award, and if in either case either of such persons fails within the time named in that behalf in such agreement or award, or, if no such time is named, within three months after the date of such agreement or award, to perform his part of such agreement or to comply with such award, then the other of such persons may construct the whole fence as agreed upon or awarded by such agreement or award, and may recover in any court of competent jurisdiction such part of the cost of constructing the same as may have to be contributed by the other of such persons.
8. When contributions may be paid by instalments
9. Proceedings in case of absent owners
10. Tenants to pay interest on cost of fences
11. Tenant, with right to purchase, to pay cost of fence in addition to purchase moneyAny tenant having an option to purchase, or obtain an assignment of, any land occupied by him at a fixed rate shall, on completion of the purchase or assignment, pay to the owner, in augmentation and as part of the purchase money, the sum for which he would be entitled to redeem his liability to pay interest in accordance with the provisions of subsection (2) of section ten.
12. RepairsWhen any dividing fence, or any fence dividing the land of different owners erected prior to the commencement of this Act, is out of repair or has become insufficient, the owners of land on either side thereof shall be liable for the cost of repairing such fence in equal proportions.
13. Notice of required repairs to owner of adjoining land
14. Bush may be cleared for fencingWhere any fence is to be erected on land covered with bush, the person erecting such fence shall be entitled to clear the bush for a width not exceeding 1.8288 metres on each side of the line of such fence, and may remove any tree standing in the direct line of such fence, and the cost of such clearing shall be added to and form part of the cost of the erection of such fence; and in case the person erecting such fence is entitled to recover in respect of such cost of erection from any other person, the cost of such clearing shall be apportioned accordingly.
15. Construction of certain fencesThe owner of any land may, in making a ditch and bank fence dividing his land from any adjoining land, make a ditch on such adjoining land, and use the soil taken therefrom towards making a bank, or he may make the ditch on his own land, and place the bank on such adjoining land. Where a dividing fence is made of posts and rails, or wire, or paling, the posts of such fence shall be placed on or as near as possible to the boundary line.
16. Provision when river is boundary between landsWhere a river, creek, or natural water-course forms the boundary of contiguous lands, but is not capable of resisting the trespass of animals liable to be impounded, it shall be competent for the owners of such contiguous lands to agree upon such a line of fence on either side of such river, creek, or natural water-course as shall secure such fence from the action of floods. If the owners do not agree upon such a line of fence, the line of fence to be erected, and whether any or what compensation in the shape of an annual payment shall be paid to either of the parties owning such contiguous lands in consideration of loss of occupation of land, shall be settled by arbitration:Provided that the occupation of lands on either side of such line of fence shall not be deemed adverse possession, and shall not affect the title to or possession of any such lands, save for the purposes of this Act.
17. Damages against person neglecting to clear inflammable matter from boundary lineIf the owner of any land clears the same of inflammable materials for the space of 9.144 metres from any fence dividing such land from the land of any other owner, and such other owner neglects or omits so to clear his land, and any damage from fire happens to such dividing fence through such neglect or omission, the owner so neglecting or omitting to clear shall, at his own cost and charge, cause such fence to be repaired and re-erected within the space of one month after the same has been so damaged, and in case he refuses or omits to repair or re-erect the said fence within such space of one month, the owner of the land contiguous to the said fence who has cleared the same of inflammable materials as aforesaid may repair or re-erect such dividing fence forthwith, and all sums of money which may be so expended or laid out under the provisions of this section shall be deemed and taken to be money paid to the use of the owner in default:Provided that nothing herein shall be deemed to take away or interfere with the right of any person to sue for and recover compensation for or in respect of any damage or injury to any fence occasioned by the reckless or negligent use of fire.
18. Right of way to construct fencesEvery person engaged in constructing or repairing a fence under this Act, and his agents and servants, may, if there is no available access thereto over the land of such person at all reasonable times during such construction or repair, enter upon the contiguous lands with or without cattle, carts or other vehicles, and do thereupon such acts, matters and things as are necessary or reasonably required to carry into effect the construction or repair of such fence:Provided that nothing herein contained shall authorise the entry for the purposes aforesaid upon any land in cultivation or in or upon any garden, plantation, or pleasure ground, without the consent of the owner, or shall authorise any person to cut down, lop, or injure any fruit or ornamental tree or shrub without such consent.
19. Landlord may defend proceedings against tenantAny person may intervene and defend any proceedings under this Act against any tenant of such person, in consequence of which such person may ultimately incur any liability; and any defence which the person originally proceeded against might set up shall be available to the person intervening.
20. Subordinate courts to have jurisdictionProceedings for orders and for the recovery of sums of money not exceeding one thousand kwacha may be taken before a subordinate court of the first or second class, notwithstanding that the decision of any such question is beyond the ordinary jurisdiction of such court.
21. Penalty for wilful damage to fence or gateAny person who wilfully injures or removes any fence, gate or other appliance or contrivance forming part thereof, shall be guilty of an offence and liable to a fine not exceeding two thousand two hundred and fifty penalty units, or in default of payment to imprisonment for a period not exceeding six months, and shall in addition be ordered by the court by which he is convicted to pay the amount of damage sustained by the owner of such fence, gate or other appliance or contrivance, and such order shall be executed in the same way a judgment of such court in a civil case is executed.[As amended by Act No. 13 of 1994]
22. Accidental injuryAny person who inadvertently or accidentally injures any fence shall forthwith repair the same, and in the event of his being unable to do so shall forthwith report the damage to the owner and deposit such sum as may be reasonably sufficient to cover the cost of repairing the same, and shall be entitled to receive a receipt therefor. Any person failing to repair such fence or give such notice and make such deposit as aforesaid, or any owner refusing to give a receipt therefor, shall be guilty of an offence and liable to a fine of three hundred penalty units, or in default of payment to imprisonment for a period not exceeding fourteen days, and shall in addition remain liable to pay the cost of repair.[As amended by Act No. 13 of 1994]
23. RegulationsThe Minister may, by statutory instrument, make regulations relating to the provision of gates and cattle grids in fences adjoining roads and the insertion of cattle grids in roads.[No. 32 of 1950 as amended by G.N. No. 319 of 1964]
24. Existing contracts not affected by this ActNothing in this Act shall be deemed or taken to affect any covenant, contract or agreement made, or hereafter to be made, relative to fencing, between landlord and tenant, or between owners of adjoining land.
25. Existing fencesNothing in this Act contained, other than the provisions of section twelve, shall affect or apply to any fence erected before the application of this Act to the area in which the fence is erected.
History of this document
31 December 1996 this version
01 October 1949