Fencing Act, 1904
Act 7 of 1904
- Commenced on 30 January 1904
- [This is the version of this document at 1 December 1998.]
Part I – Preliminary
1. Short titleThis Act may be cited as the Fencing Act, 1904.
2. InterpretationIn this Act, unless the context otherwise requires—“dividing fence” means a fence separating the lands of adjoining owners, of specifications which such owners may agree upon or, in the event of disagreement, which may be settled by the District Commissioner, situate either along or close to the surveyed line of common boundary;“fence” means a substantial stock proof fence, with gates at places where it crosses public or private roads, and suitable appliances where it crosses other obstacles, and any such fence shall be deemed to be a sufficient fence within the meaning of the Stock Theft Act, No. 6 of 1904;“Minister” means the Minister for Agriculture;“owner” except for the purposes of section 3, includes—(a)the person registered as the owner of land in the office of the Registrar of Deeds;(b)the grantee or lessee of Government land, under any law relating to Government land;(c)the Minister in respect of any Government land on which indigenous timber, within the meaning of the Forest Preservation Act, No. 14 of 1910 is growing;(d)in relation to land set apart under the Concessions Partition Act, No. 28 of 1907 or any other law for the sole and exclusive use and occupation of the Swazi people, the duly appointed chief in respect of the area in which such land is situated; and in relation to Land Registered in the name of the Ngwenyama and held in trust by him for the Swazi nation, the Ngwenyama;(e)in relation to any land in a township or urban area, the duly appointed local authority for such township or area.
Part II – Proclaimed areas
4. ArbitrationThe District Commissioner shall hear and determine all disputes in regard to the erection, repair, maintenance and specifications of dividing fences in his district as if he were the sole arbitrator appointed by the parties under the provisions of the Acquisition of Property Act, No. 10 of 1961.
5. Notice to fenceIn the absence of any agreement, the owner of a holding intending to erect a dividing fence along his boundary or any part thereof along which there is no fence shall notify the District Commissioner and the owner of the adjoining holding of his intention to do so and of the specifications of the intended fence.
6. Effect of failure to agree or receive noticeIf no agreement in respect to the erection of a dividing fence is made between the parties nor notice to the contrary received from the owner of the adjoining holding within six weeks, then any time thereafter the owner giving the notice may proceed to erect such dividing fence according to the specifications contained in his notice and shall be entitled to receive one-half the cost from the adjoining owner.
7. Objections to specifications
8. Natural barrierIf a permanent river or other natural obstacle forms an effective natural barrier against the passage of stock the person receiving the notice under section 5 may give notice to the other party and the District Commissioner that he considers the fence specified or a part thereof unnecessary, and the District Commissioner shall on being notified determine the matter and the specifications of fence, if any, to be erected.
9. Give and take line
10. Payment by instalments
11. Service of noticesNotice under this Act unless otherwise expressly provided shall if possible be served personally upon the person to whom it is addressed but, if the residence of such person is unknown or if he has no known representative in Swaziland it shall be sufficient service of such notice if it be sent through the post by registered letter to the last-known place of abode or business in Swaziland of such person and copy thereof be published once in the Gazette and once in some newspaper, if any, circulating in the district in which the holding which is the subject of such notice is situated and be also forwarded to the District Commissioner of the district, who shall cause the same to be affixed to the door of his Court.
12. Existing fencesA person along the boundary of whose holding there was a fence erected prior to the date of the notice applying this Part may apply to the District Commissioner after such notice to have the fence recognised as a dividing fence within the meaning of this Act, and the District Commissioner shall fix a place and day for considering the application, and shall notify the parties interested, and may—
13. Cost of repairsIf any dividing fence shall be out of repair or become insufficient the occupiers of land on either side thereof shall be liable for the cost of repairing such fence in equal proportions.
14. Notice to repair fenceThe occupier of land separated from adjoining land by a dividing fence may serve a notice upon the occupier of such adjoining land requiring him to assist in repairing such fence and if such occupier refuses or neglects for the space of one week after the service of such notice to assist in repairing such fence first-named occupier may repair such fence and recover from such occupier his portion of the cost of repairing the same in manner provided in section 15:Provided that if a dividing fence or a portion thereof is destroyed by accident the occupier of land on either side may immediately repair it without notice and shall be entitled to recover his proportion of the cost thereof from the occupier of the adjoining land; andProvided further that if such destruction is due to the act or default of one of such adjoining occupiers he shall be liable for the whole cost of repair.
15. Mutual rights of recovery of costsAll costs recoverable under this Act in respect of the construction or repair of any fence may be recovered from the person or from any one of several persons liable to contribute to the cost of such construction or repair and served with notice as prescribed; or from any person who may come in and defend under the provisions of this Act any proceeding consequent on such notice and all such moneys recoverable by any person served with such notice may be recovered from the person serving the same or any person liable to contribute to the construction or repair of such fence.
16. Mortgage bonds as security for payment of money owing
17. TrespassAfter two years from the date when an area has by notice been brought under the provisions of this Part, no person shall, unless at the time his holding is surrounded by a fence—
18. Quarantine in case of unfenced holdingsIf the stock of any class on a holding within an area to which this Part has been applied are declared to be infected with any infectious or contagious disease by the proper authority appointed in that behalf, then the stock of that class (or of any class which is declared to be capable of carrying such infection) on any holding adjoining or separated from such first-mentioned holding only by a road or outspan or other unfenced holding, shall be subject to the same regulations as to quarantine as the stock on such first-mentioned holding, unless such adjoining holding is surrounded by a fence which is stockproof in respect of such class or classes of stock.
19. Certificate of joint ownership
20. Adjustment between joint ownersIf there are more than one owner or occupier of a holding and one of such owners or occupiers is under this Act compelled to pay a contribution in respect of the erection, alteration or maintenance of fencing he may in any competent Court sue for and recover from such other owners or occupiers such proportion thereof as in the opinion of the Court is fairly proportionate to their respective rights and interest.
21. Holdings under lease
22. When adjoining holdings are in different districtsIf the dividing line between two holdings forms portion of the boundary between two districts the case shall be heard before and the specified notices given to the District Commissioner for the district in which the holding is situate against which the claim is made.
23. TrusteesAny person in whom any holding is vested in trust for any other person may raise money by mortgage of such holding for the purposes of this Act as if such power had been given in the instrument creating such trust.
24. Minister’s power to grant loansThe Minister may on the application of any person grant loans for the purpose of erecting dividing fences under the provisions of this Act and may frame rules regulating the terms and conditions, as to security and otherwise, on which such loans shall be granted.
Part III – Provisions applicable to Swaziland
25. Operation of Part IIIThe provisions of this Part of this Act shall be in operation throughout Swaziland.
26. Persons using another’s fence to pay interest on half its costIf the owner or occupier of a holding has erected or hereafter erects a fence on the boundary of his holding, and any other person adopts any means by which such fence is rendered of beneficial use to himself and avails himself of such fence or portion thereof, such person shall be liable to pay such owner or occupier interest on half the then value of so much of such fence as such person shall use or avail himself of at the rate of eight per cent per annum for so long as he continues to use or avail himself of such fence and shall also so long be liable for one-half the cost of repairs of so much of such fence.
27. Bush may be cleared for fencingIf a 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 one and half metre on each side of such fence and may remove any tree standing in the immediate line of such fence and the cost of such clearing shall form part of the cost of the erection of such fence and if the person erecting such fence is entitled to recover any costs of erection from any other person, he shall also be entitled to have the cost of such clearing apportioned accordingly.
28. Ditch-and-bank fenceThe owner or occupier of land may, in making a ditch-and-bank fence to divide his land from any adjoining land, make a ditch on adjoining land and use the soil taken therefrom towards making a bank on his own land or he may make the ditch in his own land and place the bank on adjoining land:Provided that if a dividing fence is made of posts and rails or wire or palings, the posts of such fence shall, as nearly as may be, be placed on the boundary line.
29. Access for persons erecting fenceAny person erecting or repairing a fence under the provisions of this Act along any dividing line shall have reasonable access to the adjoining holdings, and to any holdings he may have let on lease, for himself, his servants, horses, implements, materials, carts or other vehicles employed on the work as he may reasonably require for the convenient erection thereof or bringing materials therefor:Provided that nothing herein shall authorise the entry for such purposes upon any land under cultivation or in or upon any garden, plantation or pleasure ground without the consent of the occupier thereof or shall authorise any person to cut down, lop or injure any fruit or ornamental trees or shrubs without such consent.
30. Access to surveyors and inspectorsFor the purpose of making any inspection, valuation or survey or performing any act necessary for carrying out the provisions or intention of this Act the District Commissioner or a surveyor or other person authorised by him may enter on lands and value, measure, survey, take grades and levels, fell trees, cut fences and perform all acts necessary:Provided that all damage done shall be as far as possible repaired or compensation paid, such compensation to be determined by the District Commissioner in the same manner as disputes in respect of the erection or repair of fences are determined by him.
31. Landlord may defend proceedings against tenantAny person may intervene and defend any proceeding under this Act against any lessee of his in consequence of which he may ultimately incur any liability and any defence which the person originally proceeded against may set up shall be available to the person so intervening.
32. Magistrate’s Courts to have jurisdictionProceedings for the recovery of sums of money under this Act may be taken before the Magistrate’s Court of the First Class of the district in which the defendant resides notwithstanding that the amount claimed shall be beyond the ordinary jurisdiction of such Court and such Court shall have jurisdiction to give judgment for the full amount claimed.
33. Act not to affect agreements between occupiersNothing in this Act shall be deemed or taken to affect any covenant, contract or agreement made or hereafter to be made relative to dividing fences between lessor and lessee or between owners or occupiers of adjoining lands:
Part IV – Offences
34. Leaving gates openAny person who opens and leaves open, or finding open on passing through neglects to shut and fasten a gate in a fence shall on conviction be liable for the first offence to a fine not exceeding twenty emalangeni and in default of payment to imprisonment not exceeding fourteen days and upon any subsequent conviction to a fine not exceeding forty emalangeni and in default of payment to imprisonment not exceeding six weeks.
35. Persons damaging fences refusing to give names and addressesAny person who damages any fence and on being requested so to do by the owner or occupier of the land on which it is situated or by some person authorised by such owner or occupier refuses to give his true name and usual address or gives an untrue name or address shall upon conviction be liable to a fine not exceeding fifty emalangeni and in default of payment to imprisonment not exceeding three months.
36. Misapplication of material or moneyAny person who misappropriates or diverts any money advanced under section 24 to or for any purpose other than that for which it was advanced, or who sells or otherwise wrongfully disposes of any of the material so advanced shall be liable on conviction to imprisonment not exceeding two years, and any sums owing for materials or money advanced with interest, if any, shall immediately become due and payable in respect thereof.
37. Malicious damage to fencingAny person who wilfully injures or removes a fence, gate or other appliance or contrivance forming part thereof shall be liable on conviction to a fine not exceeding one hundred and fifty emalangeni and in default thereof to imprisonment 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 and the order shall be executed in the same way as a judgment of the Court in a civil case is executed.
38. Accidentally damaging fencing
39. Climbing over fences
History of this document
01 December 1998 this version
30 January 1904