Swaziland Railway Act, 1962

Jurisdiction
Eswatini
Citation
Act 15 of 1962
Date
1 December 1998
Language
English
Type
Legislation
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eSwatini

Swaziland Railway Act, 1962

Act 15 of 1962

  • Commenced on 6 April 1962
  • [This is the version of this document at 1 December 1998.]
An Act to make further provision for the construction and operation of the Swaziland Railway and for the finances of the said railway.

1. Short title

This Act may be cited as the Swaziland Railway Act, 1962.

2. Interpretation

In this Act unless inconsistent with the context:“appurtenant works” includes the slopes of banks and cuttings, drainage works, stations, sidings, workshops, water works and installations, roads, industrial or residential townships, construction camps, business and office premises and all other works, measures and things which may be necessary or incidental to the construction, development and operation of the Railway;“chairman” means chairman of the Board;“goods” includes animals and vehicles and all things capable of being carried on a railway;“magistrate’s court” means a court established under the Magistrates Courts Act No. 66 of 1938;“Minister” means the Minister for Public Works and Transport;“line of railway” means the line of travel of one railway determined by or under section 30;“Railway” means the Swaziland Railway established under this Act;“railway reserve” means a strip of land not exceeding one hundred and fifty English feet in width enclosing any line of railway determined under the provisions of section 30 together with such additional land as shall be required for appurtenant works and all other immovable property of the Railway;“real property” has the same meaning as in the Acquisition of Property Act, No. 10 of 1961.

Part I – Establishment, constitution and powers of the Railway

3. Swaziland Railway incorporated

There is hereby established a body corporate to be known as the Swaziland Railway which shall be capable of suing and being sued in its corporate name and, subject to the provisions of this Act, of doing all such acts as a body corporate may by law perform.

4. Railway Board

Subject to the provisions of this Act, the affairs of the Railway shall be conducted by a Board as hereinafter constituted.

5. Members of Board

(1)The Board shall consist of the following members:
(a)A Chairman of the Board who shall be appointed by the Minister and who may also be the chief executive officer of the Railway.
(b)Six other persons who shall be appointed by the Minister, of whom one shall be a person representing the Swazi Nation appointed after consultation with the Ngwenyama in Libandla.
(2)A member shall, subject to the provisions of this Act, hold office on such conditions and for such period, and be paid out of the funds of the Railway such remuneration and allowances, if any, as the Minister may, in his case, fix:Provided that if a member of the Board is also a member of the public service of Swaziland he shall receive from the funds of the Railway no remuneration, fees or allowances.
(3)A retiring member shall be eligible for re-appointment.
(4)The Minister may in his discretion at any time terminate the appointment of any member of the Board appointed under subsection (1)(b) or of any alternate to such member appointed under the provisions of section 6.

6. Alternate members

(1)The Minister shall in his discretion appoint an alternate to each member of the Board save and except the chairman, and such alternate shall be entitled to attend all meetings whether or not attended by the member to whom he is alternate.
(2)At any meeting not attended by the member to whom he is alternate he shall have all the rights of that member but if that member is present at the meeting he shall have none of the rights of that member other than the right to attend.
(3)Those provisions of section 5(1)(b) which relate to consultation prior to the appointment of the member of the Board representing the Swazi Nation shall apply in the case of the appointment of an alternate to such member.
(4)Each alternate member shall receive such remuneration and allowances, if any, from the funds of the Railway as the Minister may, in his case, fix.

7. Disqualification of members

The Minister shall not appoint a person as a member and no person shall be qualified to hold office as a member who—
(a)has, in terms of any law in force in Swaziland or elsewhere—
(i)been adjudged or otherwise declared insolvent or bankrupt and has not been rehabilitated or discharged; or
(ii)made an assignment to, or arrangement or composition with, his creditors which has not been rescinded or set aside; or
(b)has, within a period of five years immediately preceding the date of his proposed appointment served a sentence of imprisonment of, or exceeding, six months without the option of a fine in Swaziland or elsewhere and has not received a free pardon.

8. Termination of membership

A member shall vacate his office and his office shall become vacant—
(a)one month after the date he gives notice in writing to the Minister of his intention to resign his office, or after the expiry of such shorter period as the Minister may agree to accept; or
(b)on the date he begins to serve a sentence of imprisonment imposed, without the option of a fine, in Swaziland or elsewhere; or
(c)if he becomes disqualified in terms of section 7(a) to hold office as a member; or
(d)if he has absented himself from meetings of the Board for a continuous period of six months except with the prior consent of, or for some reason approved by the Minister; or
(e)if in the opinion of the Minister he is guilty of misbehaviour or is otherwise unable or unfit for any reason to discharge the duties of a member.

9. Acting chairman

If the chairman is unable to exercise his functions by reason of illness or absence from Swaziland or other cause, the Minister may appoint a member to act as chairman and the chairman so appointed shall exercise the functions and powers and perform the duties of the chairman during the period of incapacity or absence.

10. Quorum and procedure at Board meetings

(1)The quorum for a meeting of the Board shall be four.
(2)The chairman shall preside at all meetings of the Board at which he is present and if he is absent and an acting chairman has not been appointed in terms of section 9, the members present may elect one of their number to preside as chairman at the meeting.
(3)All questions coming before or arising at a meeting of the Board shall be decided by a majority vote of the members present and voting, and in the case of an equality of votes the person presiding at the meeting shall have a casting vote in addition to his deliberative vote.
(4)
(a)If a member of the Board has or acquires a direct or indirect pecuniary interest either personally or through any company or partnership in any contract for the supply of materials to or the execution of work for the Railway or if the Board is considering an application for any such contract in which he would have any such interest, he shall forthwith make full disclosure of that interest to the Board and shall not take part in the Board’s consideration or discussion of any question relating to such contract or application or vote thereon without the prior consent of the chairman.
(b)Where an application is before the Board relating to any contract other than a contract mentioned in paragraph (a), any member of the Board who has any interest therein as defined in the said paragraph shall, before taking part in any discussion thereof, forthwith declare his interest therein and shall not without the consent of the chairman vote thereon.
(5)Subject to the provisions of this section, the Board may make standing orders for the convening of meetings, regulation of its proceedings and business and may vary, suspend or revoke such orders.
(6)The Board may appoint a committee from among its members to whom it may delegate from time to time such powers as it deems fit.
(7)The Board shall keep minutes of all meetings which shall be confirmed at the next succeeding meeting of the Board.
(8)Copies of all such minutes shall be sent to the Minister for his information.

11. Validity of actions of Board

No decision or act of the Railway or act done by or under the authority of the Board shall be invalid by reason only of the fact that—
(a)the Board consisted of less than the number of members for which provision is made in section 5(1); or
(b)a disqualified person acted as a member at the time the decision was taken or the act was done or authorised;
if the decision was taken or the act was done or authorised by a majority of those voting and entitled to vote at the meeting at which the decision was taken.

12. General duty of the Railway

It shall be the general duty of the Railway so to exercise its powers under this Act as to provide or to secure and promote the provision of an efficient and adequate system of public transport of goods and passengers by rail with due regard to economy and safety of operation and to supply the needs of Swaziland for rail services to the fullest possible extent consistent with the resources of the Railway.

13. Powers of Railway

(1)The Railway shall have the power, subject as hereinafter provided, to do anything which is calculated to facilitate the discharge of its duties under section 12 or which is incidental or conducive thereto, including in particular but without derogating from the generality of this provision, power to carry on business as public or common carrier or to carry goods and passengers by rail, road, air or inland waterways within Swaziland or elsewhere, subject to its obtaining any necessary permission from persons or authorities concerned in other countries, and to carry on all such ancillary business with the business as can suitably be carried on in conjunction with the business of transport.
(2)Subject to the provisions of this Act, the powers conferred by subsection (1) shall include power—
(a)to construct or acquire any railways or tramways which may seem capable of being worked or used in connection with any of its lines of railway or likely directly or indirectly to benefit it and to acquire rights over or in connection with any such railways or tramways or any branch or subsidiary lines;
(b)to carry on the business of road transport and to engage in any service ancillary to the business of road transport either by itself or in co-operation with any person or company by way of partnership, shareholding or the like;
(c)to operate air transport services and for that purpose to acquire aircraft, parts of aircraft and aircraft equipment and accessories;
(d)to operate transport services by inland waterways;
(e)to consign goods on behalf of other persons from any place in Swaziland to any other place, whether in Swaziland or elsewhere;
(f)to store goods whether or not those goods have been or are to be carried by the Railway;
(g)to effect the insurance of persons and goods carried on the railway or other undertakings either solely or in co-operation with other insurers;
(h)to provide hotels, hostels, living accommodation and places for recreation and refreshment for their passengers, their employees and other persons;
(i)to provide such other amenities and facilities for passengers, their employees and other persons making use of the services provided by them as it may appear to them requisite and expedient to provide;
(j)to purchase, take on lease or in exchange, hire or acquire any property, movable or immovable, real or personal in fulfilment of its duties and in particular any land, buildings, easements, servitudes, water rights, mining rights, licences, patents, machinery, ships, barges, rolling stuck, vehicles, aircraft, plant, and stock-in-trade and to sell or otherwise dispose of any such property as is no longer required for its undertakings;
(k)to sell land, lay out land for building purposes, to let land, build on or otherwise improve land, advance moneys to its servants to enable them to build or acquire houses whether erected on land belonging to the Railway or other land, and generally to use or otherwise develop land in such manner as may seem expedient to advance the interests of the Railway;
(l)to lend money to or give guarantees for the benefit of such persons as may be carrying on similar activities as are specified in this section and on such terms as may seem expedient;
(m)to enter into partnership or into any arrangement for sharing profits, union of interests, joint venture, reciprocal concession or co-operation with any person carrying on or engaged in or about to carry on or engage in any business or transaction which the Railway is authorised to carry on or engage in, or any business or transaction capable of being conducted so as to benefit directly or indirectly the Railway, and to take or otherwise acquire and hold shares or stocks in or securities of and to subsidise or otherwise assist any such person and to sell, hold, re-issue, with or without guarantee or otherwise deal with such shares or securities;
(n)to apply for, purchase or otherwise acquire any patent, concession or the like, conferring any right to use any invention capable of being used for any of the purposes of the Railway, and to use, grant licences for the use of, or otherwise turn to account any rights so acquired;
(o)to subscribe or guarantee money for charitable or benevolent objects or for any exhibition or for any public, general or useful object;
(p)to acquire by agreement (whether absolutely or for any period) the whole or any part of an undertaking of any other person, being an undertaking or a part of an undertaking the activities whereof are wholly or mainly such activities as are specified in subsection (1);
(q)to construct, manufacture, purchase, maintain and repair anything required for the purpose of any of the activities of the Railway specified in subsection (1);
(r)to do anything for the purpose of advancing the skill, knowledge and usefulness of the employees of the Railway or the efficiency of the equipment of the Railway or of the manner in which that equipment is operated, including the provision by the Railway, and the assistance of the provision by the Railway, and the assistance of the provision by others, of facilities for training, education and research and to establish, maintain and support or otherwise assist associations, institutions or conveniences for employees of the Railway or those having dealings with the Railways;
(s)to enter into and carry out agreements with any person carrying on business as a carrier of passengers or goods inside or outside Swaziland providing for the carriage of passengers and goods by or on behalf of the Railways and that other person under one contract or at a through charge or in the same vehicles or containers, whether belonging to the Railway or not;
(t)to enter into and carry out agreements with any person owning any railway or carrying on business as a carrier of passengers or goods in Swaziland or elsewhere providing for the operation of any such railway or for the carriage of passengers and goods by or on behalf of the Railway;
(u)to borrow or raise, with or without security, money in such manner as the Railway shall think fit, and in particular by the issue of debentures or debenture stock, perpetual or otherwise, special and general mortgage bonds, charged upon all or any of the Railway’s property both present and future, and to purchase, redeem or pay off any such securities;
(v)to dispose, whether absolutely or conditionally, of any part of its undertakings or any property which in the opinion of the Board is not required by it for the discharge of its duties under this Act.
(3)Notwithstanding the provisions of the foregoing subsections, it is hereby declared that the Railway shall in all other respects conform with the provisions of the laws of Swaziland.
(4)This section shall not be construed as limiting any power of the Railway conferred by any other provision of this Act.

14. Function of Board

(1)It shall be the function of the Board, subject to the provisions of this Act, to conduct the business of the Railway, and for the due performance of its function, subject to the provisions of subsection (2), the Board shall be entitled to exercise all the powers conferred on the Railway by this Act.
(2)The Board shall in the exercise of the powers conferred give effect to any direction on matters of policy which may from time to time be given to it by the Minister; in particular the Board shall in the following matters not exercise the powers of the Railway without the prior consent of the Minister—
(a)any important question of railway policy of an international character requiring an agreement with any Government, authority or person owning or operating any railway in any territory adjacent to Swaziland with respect to the persons by whom and the terms on which any of the railways with which the parties are respectively concerned shall be operated;
(b)the establishment of the basic rates and fare structure or any radical alteration thereof;
(c)the raising of new capital whether by direct approach to the public or by borrowing from the Government;
(d)any construction of a new railway;
(e)capital expenditure on any one work involving one hundred thousand emalangeni or more;
(f)any other important matter as regards policy which the Minister may from time to time direct to be reserved in terms of this subsection.

15. Chief executive officer

(1)There shall be a chief executive officer of the Railway who shall be appointed by the Minister (who shall have regard to such person’s previous experience in railway administration) on such conditions and for such period as the Minister may decide.
(2)It shall be the function of the chief executive officer generally to manage and direct the regulation, maintenance and operation of the Railway.
(3)For the due performance of his function the chief executive officer shall, subject to the provisions of subsection (4), be empowered—
(a)to expend all monies which are required for working expenses in accordance with budget estimates previously approved by the Board; this power shall include the power to re-appropriate between one abstract and another of the budget estimates of revenue expenditure:Provided that in respect of any one re-appropriation the amount so re-appropriated shall not exceed twenty thousand emalangeni;
(b)to organise and control all construction work which from time to time may be deemed necessary;
(c)to take such steps as he may deem necessary or advisable in regard to the construction, equipment and operation of the undertakings of the Railway as will reasonably secure the safety both of members of the public and persons operating such undertakings;
(d)on behalf of the Railway to sign all necessary documents, to accept service of process and to institute or defend proceedings in any court, which power shall include the power of substitution;
(e)to do all such other acts as are necessary for the due performance of his function and as are within the powers conferred upon the Railway by this Act.
(4)In the following matters the chief executive officer shall not exercise the powers conferred upon him by this Act without the prior consent and approval of the Board—
(a)any matter in which the Board cannot act without the prior consent and approval of the Minister;
(b)the acceptance of any tender in excess of one hundred thousand emalangeni;
(c)the sale, disposal or writing off of any property or assets of the Railway of a greater value than twenty thousand emalangeni for any one sale, disposal or writing off;
(d)the entry into any agreement for the working of the Railway by any other railways, company, administration or other person or for the working of any other railway belonging to any railway, company, administration or other person;
(e)the entry into any agreement of a continuing nature providing for special rates and fares;
(f)any general variation of the salaries or wages of the employees of the Railway;
(g)the appointment of any person as a Railway employee with a rate of pay of three thousand emalangeni or more per annum other than a person already employed by the Railway;
(h)promotions and appointments in a permanent capacity of heads of departments;
(i)any permanent increase in staff in excess of the provision in the approved revenue budget and involving in any one category or class an expenditure of more than ten thousand emalangeni a year;
(j)in relation to expenditure not wholly chargeable to working expenses—
(i)expenditure on new lines or rolling stock or surveys not provided in the approved budget for the year or previously authorised in an approved budget of a previous year;
(ii)expenditure on other works not provided in the approved budget for the year or previously authorised in an approved budget of a previous year:
Provided that this paragraph shall not apply to any work costing less than twelve thousand emalangeni if the total sum provided in the budget for such works is not exceeded;
(k)expenditure on any item in excess of more than twenty per cent, or ten thousand emalangeni, whichever is the lesser, over the costs entered in the approved capital budget.

16. Information for Minister

Both the Board and chief executive officer shall give to the Minister all such information relating to the Railway as the Minister may at any time require.

Part II – Finance and accounts

17. Expenditure not to exceed revenue

It shall be the object of the Railway so to exercise its functions and perform its duties as to ensure that all its revenues from whatever source are not less than sufficient to meet all its outgoings properly chargeable to revenue account one year with another.

18. Funds of Railway

The funds of the Railway shall consist of—
(a)such sums as may be made available to the Railway by the Government from time to time;
(b)such sums borrowed by the Railway with the approval of the Minister by the issue of debentures or by such other appropriate means as the Minister may approve;
(c)such other moneys or assets as may vest in or accrue to the Railway whether in the course of its operations or otherwise.

19. Temporary loans

The chief executive officer may, with the consent of the Board or in accordance with the terms of any general authority given by the Board, borrow temporarily by way of overdraft or otherwise such moneys as may be required in the ordinary course of business for the purpose of temporary accommodation.

20. Investment of surplus funds

Any sums in the hands of the Railway which are not immediately required for the purpose of its business may be invested by the Board in such manner as it thinks proper.

21. Budget estimates

(1)The chief executive officer shall submit to the Board budget estimates of the anticipated revenue and expenditure on revenue account and estimates of capital expenditure.
(2)In the budget estimates of capital expenditure the chief executive officer shall be entitled to provide gross sums in respect of works, none of which is estimated to cost twelve thousand emalangeni or more, and he shall in such estimates separately classify and give a short, description and justification for all works each of which is estimated to involve a sum of twelve thousand emalangeni or more.
(3)The chief executive officer shall submit to the Board separate particulars and estimates of the rolling stock and locomotives from time to time required.
(4)The Board shall consider the budget estimates and may either approve them or after consultation with the chief executive officer make such alterations as the Board may think fit.
(5)After approval the budget estimates shall, subject to such tendering procedure as the Board may require, be the authority of the chief executive officer to incur expenditure without further reference to the Board unless capital expenditure in excess of one hundred thousand emalangeni or more is involved.
(6)This section shall not apply until the line of travel set out in section 30(1)(a) has been constructed and opened to traffic.

22. Exemption from income tax

The receipts and accruals of the Railway shall be exempt from income tax or any similar tax on income imposed by any law.

23. Accounts and audit

(1)The chief executive officer shall in consultation with the Board cause proper accounts and other records in relation to the Railway’s operations to be kept and shall cause to be prepared in respect of each financial year, which shall end on the thirty-first day of March of each year, a statement of accounts in such form as the Board may direct.
(2)The accounts of the Railway shall be audited by an auditor or auditors to be appointed from time to time by the Board.
(3)The auditors shall make a report to the Board on the accounts examined by them and on the statement of accounts prepared for the financial year and the report shall state—
(a)whether or not they have obtained all the information and explanations which they have required; and
(b)whether in their opinion the balance sheet contained in such statements of account is properly drawn up so as to exhibit a true and correct view of the state of the Railway’s affairs according to the best of their information and explanations given to them, and as shown by the books of the Board.
(4)Every auditor of the Railway’s accounts may have access at all times to the books and accounts and the vouchers of the Railway and may require from the Board, the chief executive officer and members and officers and servants of the Railway such information and explanations as may be necessary for the performance of the duties of the auditors.
(5)In addition to making their reports to the Board, the auditors may make any statement or explanation which they desire to the Minister with respect to the accounts of the Board which they have examined.
(6)The Board shall as soon as possible after the end of each financial year submit to the Minister a report dealing generally with the operations of the Railway during that year.
(7)Such reports shall be accompanied by the statement of accounts referred to in subsection (1) and the report of the auditors thereon.

Part III – Rates and other charges

24. Fixing of rates and charges

(1)The chief executive officer shall, subject to the provisions of this Act and any direction given by the Board, have power—
(a)to fix and alter from time to time the rates, fares, and other dues and charges for services of the undertakings of the Railway, whether such services are rendered by the Railway solely or jointly with others; and
(b)to make regulations governing the conditions under which passengers and goods will be accepted for carriage, and to retain, repeal, modify or add to such regulations.
(2)Before making any alteration in terms of subsection (1)(a), the chief executive officer shall give reasonable notice to the public of the proposed alterations.
(3)Any person may lodge with the chief executive officer an objection to any proposed alteration reasonable notice of which has been given in terms of this subsection.
(4)Notwithstanding subsection (1)(a) any person who has made an unsuccessful application to the chief executive officer for a modification of charges, or an unsuccessful objection to the chief executive officer against any proposed alteration of which reasonable notice has been given in terms of subsection (2), may appeal from his decision to the Board, which may uphold, reverse or vary such decision.
(5)The decision of the Board shall be final.

25. Charges to be equal

(1)All freight and fares for goods and passenger traffic shall at all times be charged equally to all persons, and at the same rate per ton per mile or otherwise in respect of all passengers and all goods of the same description and conveyed or transported by like conveyance or engine passing only over the same portion of the line of railway under the same circumstances and conditions, and no reduction or advance in any such rates and fares shall be made directly or indirectly in favour of or against any particular person travelling on or using the railway except where otherwise provided in this Act.
(2)Notwithstanding subsection (1), the Board may prescribe differential rates of freight for transport of goods and enter into a freight rate agreement for the purpose of stimulating traffic or the development of mining, agriculture, industry or trade, or for any other similar purpose.

Part IV – Staff and related matters

26. Duties and pay of staff

(1)The chief executive officer shall have power on behalf of the Railway by himself or by such person or persons as he may from time to time nominate, to appoint and employ such technical officers, secretaries, accountants, clerks, artisans, workmen and other servants as may be requisite for the undertakings of the Railway and to discharge and dismiss them.
(2)The chief executive officer shall have power to make by-laws and rules regulating the conduct, while on duty, of officers and servants of the Railway and may retain, repeal or modify or add to such by-laws, rules and regulations.
(3)The powers conferred upon the chief executive officer by this section in any matters mentioned in section 15(4)(f), (g), (h) and (i) shall not be exercised without the approval of the Board.

27. Benefits for employees

The Railway may provide pecuniary benefits for its employees on their retirement, resignation, discharge or other termination of service or in the event of their sickness or injury and for their dependants and for that purpose may effect policies of insurance, establish pension or provident funds or make such other provision as may be necessary to secure for its employees and their dependants any or all of the pecuniary benefits to which this section relates.

Part V – Railway construction and acquisition of property

28. Construction of line of railway

The Railway shall take all steps necessary for the efficient and economical construction of any railway determined by the Minister in the exercise of the powers vested in him in terms of section 30 and for this purpose shall have power to do anything which is calculated to facilitate such construction or which is incidental or conducive thereto.

29. Preliminary investigations

(1)Any person authorised by the Railway thereto may enter upon any land for the purpose of designing and planning any new railway or appurtenant works or both and it shall be lawful for any such person to do all or any of the following things:
(a)to survey and take levels of any land;
(b)to dig or bore under the sub-soil;
(c)to do all other acts necessary to ascertain whether the land is suitable for such railway or works;
(d)to clear, set out and mark the boundaries of any land proposed to be acquired in terms of this Act for such railway or works, and the intended line of the railway or other work proposed to be constructed thereon:
Provided that no person shall enter any building or upon any enclosed court or garden attached to a dwelling house except with the consent of the occupier thereof without previously giving such occupier seven days’ notice of his intention to do so.
(2)Where an entry is made under subsection (1) and damage is done in consequence thereof, the Railway shall be liable to pay compensation therefor.
(3)Where any dispute as to the amount of such compensation arises, either the Railway or the person claiming compensation may refer the matter to the magistrate’s court of the First Class for the District where the damage has occurred if the amount in dispute does not exceed the civil jurisdiction of that Court and in all other cases to the High Court.
(4)An appeal shall lie to the High Court from the magistrate’s court as though such decision was given by the magistrate’s court in the exercise of its original jurisdiction.

30. Determination of line of railway

(1)The line of railway between the terminal points thereof in Swaziland, or any section thereof, shall be—
(a)the line of railway set out in the First Schedule; and
(b)any other line of railway determined under the following provisions of this section.
(2)Any proposed extension of or addition or alteration to the line of railway or any new line or railway shall be defined and determined by a plan and description to be lodged by the Board in the office of the Minister.
(3)After the lodgement of the plan referred to in subsection (2) the Minister shall by publication in the Gazette give notice of the intention to establish, extend, add to or alter such line of railway or any section of the line of railway and shall specify the route along which such line of railway is to travel and shall call upon any persons interested to make to him, in writing, within such time as may be specified in the notice, any representations in connec­tion therewith they wish to make.
(4)After the expiry of the specified time the Minister shall submit to the Board all such representations and objections and shall consult with the Board thereon and may consult with any private consultant or other person.
(5)If, after considering such representations and consulting the Board the Minister decides to construct and equip the line of railway, or any section thereof, along the stated route or along the same general route with minor alterations, he shall publish a notice in the Gazette declaring that such line or railway is to be constructed and equipped giving details of the route along which such railway shall travel.
(6)After the determination of a line of railway under subsection (1), (2) or (5) the Railway may make minor alterations in the line of railway with the consent of the Minister where the Minister is satisfied that private rights will not be substantially prejudiced.
[First Schedule]

31. Entry by Railway for construction purposes

After notification by the Minister under section 30 that a line of railway is to be constructed and equipped, any person authorised by the Railway may enter upon any land traversed by the line of railway determined in any notification and may define, take posses­sion of, hold and retain the railway reserve, for the purpose of constructing the railway together with appurtenant works:Provided however that if so required by the owner of such land the Railway shall within a reasonable time of such entry initiate negotiations for the acquisition of the railway reserve upon such land under section 33.

32. Occupation for temporary purposes

Notwithstanding the proviso to section 31, the Railway shall not be obliged to acquire any portion of the railway reserve which is required temporarily for the construction or maintenance of any line of railway but may occupy it without compensating the owner of such land for such right of occupation:Provided that where any direct loss or damage is caused in consequence of such occupation section 38(6) shall mutatis mutandis apply.

33. Acquisition of property

(1)The Railway may by agreement acquire real property, or servitudes over real property needed for the railway reserve.
(2)If such property or servitudes cannot be acquired by agreement, the Railway may with the prior consent of the Minister granted separately for each piece of land or servitude acquire the same compulsorily.
(3)The provisions of the Acquisition of Property Act of 1961, shall apply to any compulsory acquisition under this section and for the purpose of any compulsory acquisi­tion under this section—
(a)“Railway” shall be substituted for the Minister wherever it appears in sections 5(2), 6, 9, 13(3), 14, 16, 17, 20, 21, 24, 26, 27, 28, 30, 31 and 32 of that Act;
(b)“chief executive officer” shall be substituted for the Minister in sections 5(1), 9 and 26, and for “Permanent Secretary for Local Administration”, in sections 8, 19, 21, 22 and 32 of that Act;
(c)section 7 of that Act shall not apply to an acquisition under this section and section 16 of that Act shall apply mutatis mutandis to an entry by the Railway in terms of section 31 of this Act and the period mentioned in the said section 16 shall commence from the date of entry by the Railway under section 31 of this Act;
(d)notwithstanding the provisions of section 25 of that Act, registration in the Deeds Office as a result of an acquisition under this section shall confer title on the Railway, its successors in title or assigns, free from adverse or competing right, title, interests, trusts, claims and demands whatsoever, subject to the terms and conditions, if any, therein mentioned;
(e)26th January, 1962, shall be the date to be taken into account for the purposes of section 15(1)(a), (2)(f) and (3) of that Act and not the date of the notices referred to under those subsections in relation to the line of railway referred to in section 30(1)(a) of this Act;
(f)in the case of real property or servitudes over real property needed for the railway reserve in respect of any other line of railway, the date of publication of the notice in the Gazette declaring such other line of railway under section 30(5) of this Act shall be the date to be taken into account for such purposes;
(g)paragraph (e) or (f) shall not apply in respect of any real property or any servitude over any real property notice of intended acquisition of which has been given prior to March 20th, 1964.

34. Exemption from payment of transfer duty

Notwithstanding any other law no transfer duty shall be payable in respect of any acquisition of real property by the Railway whether by agreement or by acquisition.

35. Railway townships

The provisions of the Private Townships Act, No. 17 of 1961, shall not apply to any township established by the Railway.

36. Subdivision of land

The provisions of the Sub-Division of Land Act, No. 7 of 1957 shall not apply to any land required to be subdivided for the railway reserve nor to any subdivision of land resulting from the deduction of any land required for the railway reserve.

37. Water rights

(1)The Railway shall have the right upon the railway reserve to take such water including subterranean water occurring under such land, as may be needed for the construction and working of the Railway, for the supplying of passengers and livestock carried thereon, for the use of servants required in connection therewith and for other like objects:Provided that nothing in this subsection shall confer any right to private water which has been impounded by any person other than the Railway.
(2)Notwithstanding anything to the contrary contained in this Act or any other law, the Railway may abstract and use a quantity of the normal flow of the public streams set out in the Second Schedule to this Act, at the points indicated therein, such quantity not to exceed the maximum quantity stated therein.
(3)The provisions of the Water Act No. 25 of 1967 shall apply to the taking by the Railway of any water other than in terms of subsections (1) and (2).
(4)In this section the expression “normal flow” shall have the meaning ascribed to it in the said Water Act.
[Second Schedule]

38. Right to take materials for construction

(1)The Railway may take and convey from any land through which any line of railway may pass or cause to be taken and conveyed therefrom any material necessary for making and maintaining the line of railway within the limits of that land.
(2)If any land does not contain a sufficient or suitable supply of material for the purpose of subsection (1), the Railway may take and convey such materials from adjoining land or from any other land or from any urban area (other than surveyed erven or township lots) on which the material may be obtained.
(3)The Railway may select any place or places which it may deem suitable on such land or urban area as the case may be from which to take such material:Provided that the owner shall if he so desires be entitled to point out another place or places for such purpose, and where such last mentioned place or places are considered by the Railway to be accessible as regards distance and as suitable as regards quantity and quality of materials as the place selected by it, the material shall be taken from the place or places selected by the owner.
(4)The Railway shall not be entitled to take possession of any such material on which the owner has expended any labour, or to take stones or other materials from any house, kraal or walls, without the consent of the owner thereof.
(5)For the purpose of obtaining materials in terms of this section the Railway shall have the right, where necessary, to make openings in fences and to make roads to quarries and other places:Provided that such openings shall be effectively closed against trespass or straying of stock during the operations and the fence properly restored upon completion of the work and that any quarry or other excavation made in the course of the work which may be a source of danger on the completion of the work shall be securely fenced off, filled in or otherwise made safe, and no damage shall be done to any improvements of the owner of such land over which the material is being conveyed.
(6)The owner of any land from which material is taken in terms of this section shall be entitled to such compensation therefor, or for such compensation for any direct loss or damage caused to such land as may be agreed between the parties, or failing agreement, as may be determined by the court, in which event section 29(2), (3) and (4) shall mutatis mutandis apply.

39. Fencing

(1)The Railway shall fence, where it considers it necessary and practicable, the railway reserve, and shall after negotiation with any interested person construct such openings or gates in the fence as may be necessary to permit access to crossings, stations or access roads.
(2)The cost of such fencing shall be borne by the Railway.
(3)The cost of any alterations or further openings or gates in the fences necessitated by claims made subsequent to the final determination of the crossings referred to in section 40(3) and (4) shall, unless otherwise agreed, be borne by the person claiming such alteration, opening or gate.

40. Crossings

(1)The Board may construct any permanent works including overbridges, under-bridges, level crossings or other protective works necessary to ensure the safe crossing of the railway reserve by wheeled traffic, animals, persons and by aqueducts, power lines or telegraph lines; all such works are hereinafter collectively referred to as “crossings”.
(2)No person shall construct any crossing of the line of railway nor carry out any works nor disturb any soil in the railway reserve, except with the prior approval in writing of the Board.
(3)Any person whose property is traversed by the line of railway shall be entitled, within a period of three months from the publication of the notice referred to in section 30 to claim access from one portion of his land to another by means of a crossing of the line of railway or railway reserve for the proper conduct of his farming, business or mining operations in existence at the time the plan is lodged under section 30(2).
(4)Such access shall be provided by such crossing or crossings as may be shown by the person aggrieved to be reasonably necessary, on terms and conditions to be decided by the Railway, all reasonable costs in connection therewith being borne by the Railway.
(5)Any person who desires to secure a crossing of the line of railway or railway reserve for purposes other than those mentioned in subsection (3) or (4) shall make application in writing to the Railway, stating the full circumstances of his application, which, subject to the right of appeal given in subsection (10), may be granted or refused by the Board on such conditions as the Board may deem fit.
(6)In considering an application for a crossing of the line of railway or railway reserve, the Board may call upon the applicant to produce such additional plans or evidence in support of the application as it may deem necessary for the proper consideration of the application and shall, as expeditiously as possible, give its decision in the matter.
(7)Where any right of access is agreed by the Railway under subsection (4), it shall as soon as practicable serve notice on the owner of such right showing what works will be constructed to protect or preserve it.
(8)The cost of all permanent works necessary in respect of a crossing of the line of railway or the railway reserve the rights to which were agreed by the Railway in accordance with subsection (4), shall be borne by the Railway.
(9)The costs of all other crossings shall be borne by the person so claiming.
(10)Any person aggrieved by the decision of the Railway in respect of the provision, construction or apportionment of the costs of any crossing of the line of railway or the railway reserve may appeal to the Minister.
(11)In considering such appeal the Minister shall call for such evidence as he may require, and upon consideration of all the evidence, shall give his decision in the matter.
(12)The Minister’s decision shall be final and shall not be questioned in any Court.[Amended P.7/1964]
(13)The use, whether in terms of this Act or otherwise, of any crossing by any person, for any period, shall not be capable of conferring or creating any prescriptive rights in or over the railway reserve in favour of any person or land.

41. Replacement of level crossings by bridge or subway

(1)Whenever at the intersection of a public road and a line of railway such road is carried across the railway by means of a level crossing and either the road authority or the Railway considers that by reason of the density of the traffic on such road or on such railway the level crossing should be abandoned and the road carried over the railway by means of a suitable bridge or under the railway by means of a suitable subway, either the Railway or the road authority may make application to the Minister for determination of the matter.
(2)On such application the Minister shall cause enquiry to be made and may, if he deems fit, direct that such bridge or subway shall be constructed.
(3)The costs of construction and maintenance of such bridge or subway shall be borne by the road authority and by the Railway respectively in such proportions as may be agreed between them or, failing agreement, as may be determined by arbitration.
(4)In apportioning such costs the arbitrators shall pay due regard to the relative advantages and conveniences to both the Railway and the road authority and to the question as to whether the necessity for the construction of such bridge or subway is due to increased railway of road traffic.

42. Protective works at crossings

(1)Where either the Railway or the road authority consider that protective works are necessary at any level crossing either the road authority or the Railway may in a case of dispute, make application to the Minister for determination of the matter.
(2)On such application the Minister shall cause enquiry to be made, and may, if he deems fit, direct that such protective works shall be constructed or provided.
(3)The cost of such protective works and maintenance thereof shall be borne by the road authority and by the Railway respectively in such proportions as may be agreed, or failing agreement, the road authority will pay eighty per cent of the cost of installation and the Railway twenty per cent, the cost of renewals or replacements being on a like basis, but the cost of normal maintenance being borne by the Railway.

Part VI – Miscellaneous

43. By-laws

(1)The Board, with the approval of the Minister, may make by-laws for the good management of all railway services, other operations and property of the Railway and for any other matter which in the opinion of the Board is necessary or convenient to be provided in connection therewith.
(2)By-laws made in terms of subsection (1) may provide for the punishment of any person who commits an offence against the by-laws:Provided that—
(a)the by-laws shall provide what punishment may be imposed for each offence constituted by them;
(b)the by-laws may provide for punishment not exceeding—
(i)in the case of a first conviction, twenty emalangeni, or in default of payment, imprisonment for a term of one month;
(ii)in the case of a second or subsequent conviction, thirty emalangeni, or in default of payment, imprisonment for a term of three months.
(iii)in the case of a continuing offence, a penalty of four emalangeni for each day the offence continues;
(c)the by-law shall not have effect until published in the Gazette.

44. Accidents

(1)When in the course of working the railway an accident occurs which is attended with loss of human life or grievous bodily injury to any person or in which a passenger train is concerned, the chief executive officer shall, without unnecessary delay, send written notice of the accident to the Minister.
(2)The report shall contain a brief statement of the nature of the accident and of the injuries, if any, caused to any person or persons.
(3)The Minister, if he considers it advisable, may order an enquiry into the cause of any such accident and may direct a Regional Secretary or other competent person (hereinafter called the presiding officer) to investigate the matter with the aid of an assessor or assessors to be appointed by the Minister.
(4)Such assessor, or one at least of such assessors if more than one is appointed, shall be a person who is fully conversant with railway practice and technicalities.
(5)For the purpose of making such inquiry the presiding officer may—
(a)enter and inspect any place or building, works, offices, stock, plant or machinery, the entry or inspection whereof appears to him necessary for such purpose;
(b)summon and bring before him all such persons as he may think necessary and who are deemed capable of giving information or evidence concerning such accident;
(c)examine all such persons on oath and reduce that examination to writing;
(d)require and enforce the production of all books, papers and documents which he may consider necessary for such purpose.
(6)If any person summoned as a witness fails to attend in pursuance of such summons he shall, unless some reasonable excuse be proved on oath or affidavit, be liable to be fined by the presiding officer issuing such summons such sum, not exceeding twenty emalangeni, as the presiding officer shall think fit, and the presiding officer may issue a warrant for the apprehension of such person.
(7)The presiding officer shall administer such oaths or other solemn forms to the persons appearing to give evidence as are used in criminal cases, and the forms of summonses and of warrants of apprehension shall be, as near as may be, those in use in similar matters in magistrate’s courts.
(8)All contempts committed by witnesses or other persons before or in regard to any inquiry shall be dealt with in like manner mutatis mutandis as contempts committed by witnesses or other persons before a magistrate’s court.
(9)All witnesses summoned or attending to give evidence before a presiding officer shall be entitled to receive their expenses as if summoned to give evidence at a criminal trial before a magistrate’s court.
(10)The inquiry shall be conducted openly and all persons shall have access to the place where the inquiry is being held:Provided that the presiding officer may in his discretion, if he considers that the public interest so requires, exclude any person or persons from the inquiry or any part thereof and may hold such inquiry in such manner and under such conditions as he may think most effectual for ascertaining the causes and circumstances of the accident and for enabling him to make his report.
(11)If the presiding officer after concluding an inquiry considers that a crime or offence may have been committed in connection with the accident inquired into, by any person who can be made amenable to justice, the said presiding officer may cause such person to be summoned or apprehended and, in such case, shall report the matter to the Attorney-General in order that criminal proceedings may be instituted should the Attorney-General so decide.
(12)At the close of the inquiry the presiding officer shall submit a copy of the proceedings and a report in writing to the Minister as to the causes or origin of the accident, and shall state whether in his opinion it was caused by design or was the result of accident or negligence, stating the full particulars of the case and the conclusion at which he has arrived in regard to it.
(13)The holding of an inquiry shall not exempt any Coroner from holding any such inquest as is required by any law providing for the holding of inquests, unless the Attorney-General directs otherwise.

45. Closing gates

Any person who opens or unfastens any gate abutting on the line of railway except for the purpose of then and there passing through it with or without any vehicle or animals or of enabling some other person or persons so to pass, and any person who passes through any such gate and who does not immediately after so passing through it with or without any vehicle or animals close and fasten such gate or cause it to be closed or fastened shall be guilty of an offence and on conviction liable to a fine not exceeding ten emalangeni or in default of payment thereof to imprisonment for a period not exceeding fourteen days.

46. Stock killed or injured by Railway

(1)The Railway shall make compensation to the owner of any stock killed or injured in daylight by any train if the part of the line at which such killing or injury takes place is unfenced:Provided that no person shall be entitled to recover any such compensation if he fails within forty-eight hours after such stock was killed or injured to give notice to the nearest station master thereof and of the number and kind of stock so killed or injured.Provided further that the carcases or remains of all stock killed and injured shall be diligently kept and preserved to the best of his ability by the owner making such claim for a period of not less than three full days from the time when such killing or injury took place and shall be shown to any representative of the Railway appointed for the purpose of ascertaining the value of the stock so killed or injured.
(2)For the purpose of this section—“daylight” means the period between sunrise and sunset; and“stock” includes horse, gelding, mare, colt, mule, ass, bull, ox, heifer, tolly, cow, sheep, goat and pig.
(3)Any person who fails diligently and to the best of his ability to keep and preserve such carcases or remains of stock killed or injured as aforesaid, or who makes any claim for compensation under this section which any court of competent jurisdiction determines to be either fraudulent or grossly excessive shall not be entitled to any of the benefits of this section and any person who makes any such claim with intent to defraud shall be guilty of an offence and liable on conviction to the penalties of the crime of fraud.
(4)The amount of compensation payable under the provisions hereof to the owner shall in no case exceed the following rates, viz:—
For any horse80 emalangeni
for any mule40 emalangeni
for any head of cattle80 emalangeni
for any ass6 emalangeni
for any sheep10 emalangeni
for any goat6 emalangeni
for any pig10 emalangeni
(5)Claims for compensation under the provisions of this section shall be consignable in any competent court of Swaziland within the jurisdiction of which court such stock was killed or injured notwithstanding that the train by which the stock was killed or injured belongs to a railway administration not domiciled within Swaziland; and for the purpose of such action service upon any station master of such railway administration resident within the limits of such court shall be deemed sufficient service on such railway administration.

47. Exemption from stamp duty and fees of office

No stamp duty, fee of office in any public office, registration fee or court fee shall be chargeable in respect of any instrument, or the registration, lodgement, issue, or use thereof, if the duty or fee thereon would, but for this section, be legally payable by the Railway.

48. Saving

All acts or things done, agreements entered into whether verbal or in writing express or implied, assets rights and privileges acquired and liabilities and obligations incurred by the Swaziland Railway Board constituted under the Swaziland Railway Board Act No. 61 of 1961, shall be deemed to have been done, entered into, acquired or incurred by the Railway as fully and effectually as if the Railway had then been constituted and established under this Act.

First Schedule (Under section 30)

Swaziland railway line of travel

The line of the railway is as follows with such minor deviations as may prove necessary or desirable:
(a)Starting at a point on the Eastern border of Swaziland on the Southern bank of the Umbuluzi river on Farm 179; thence following along the Southern bank of the Umbuluzi River across Farm 179; thence following the Northern bank of the Mlaula river across Farm 176; thence in a Southerly direction across Farm 177 following the valley of the Mkumbana river; thence across the Southern corner of Farm 175 near its common boundary with Farm 174; thence in a general South-Westerly direction across Farm 704 and across the existing Lukhula-border Gate Road at a point approximately 9 miles from Lukhula; thence continuing across Farm 704 and into Swazi Area No. 27; thence in a Southerly direction across Swazi Area No. 27 to cross the existing Manzini-Stegi road at a point approximately 7 miles West of Lukhula; thence continuing in a Southerly direction across Swazi Area No. 27 and across the Lubugh river up to the Northern boundary of Portion 8 of Farm 69; thence continuing in a Southerly direction across portion 8 of Farm 69 and across the Buklatsi river thence in a Southerly direction across Portion 18 of Farm 69; thence across Portion 12 of Farm 69 just inside its Eastern boundary; thence across Portion 9 of Farm 69 near its Western boundary; thence across the South-Eastern corner of Portion 10 of Farm 69; thence across the North-Western corner of Portion 11 of Farm 69; thence continuing in a Southerly direction across the South-Eastern corner of Portion 13 of Farm 69; thence continuing in a Southerly direction across Portion 6 of Farm 69; thence in a South-Westerly direction across Portion 7 of Farm 69; to cross the Mzimpofu river at Ntengenyana; thence across Swazi Area No. 28 in a South-Westerly direction to cross the existing Spofaneni-Big Bend road at a point 11/2 miles West of the existing causeway over the Mzimpofu river; thence continuing across Swazi Area No. 28 in a Westerly direction and following the Northern bank of the Great Usutu River to cross the existing Manzini-Nsoko road just North of the low level bridge at Spofaneni; thence following the Northern bank of the Great Usutu river across Land Concession 94 L, crossing the Mzimnene river; thence continuing along the Northern bank of the Great Usutu river across Land Concession 94 L, thence across Swazi Area No. 15 still following the Northern bank of the Great Usutu river and across the Mhlamanti river; thence generally following the Northern bank of the Great Usutu river and across Portion 7, 6, 5,4, 3 and 2 of Farm 8 and across the Sidvokodvo river; thence in a North-Westerly direction across Portion 1 of Farm 8 and continuing in this direction across the North-Eastern corner of the Remainder of Farm 8; thence continuing in a North-Westerly direction across Swazi Area 15 to join the Northern bank of the Little Usutu river near Malunge; thence following the Northern bank of the Little Usutu river across Swazi Area No. 15 up to the Southern boundary of Farm 228; thence across Farm 228 still following the Northern bank of the Little Usutu river; thence across Portion 2 and 9 of Farm 300 still following the Little Usutu River; thence across Portion A of Farm 300 still following the general direction of the river; thence across the South-West corner of the Remainder of Farm 34 to cross the Little Usutu River at the boundary between Portion 1 and Portion 2 of Farm 692; thence across Portion 1 of Farm 692 but on the West side of the river; thence continuing West of the river across Farm 234 and across the existing Mbabane-Manzini road at a point approximately 1½ miles West of the existing bridge over the Little Usutu River at Matsapa; thence in a general Northerly direction across Farm 676; thence generally following the West bank of the Little Usutu River across Swazi Area No. 11 to cross the existing Mbabane-Manzini road at a point approximately half mile South of the existing bridge over the Mhlambanyati river; thence continuing across Swazi Area No. 11, and across the Mhlambanyati river to meet the Eastern border of Farm 51; thence across Portion B of Farm 51; thence in a North-Westerly direction across the Remainder of Farm 51 to join the valley of the Little Usutu River near Mantenga Falls; thence following the bank of the river across Farms 191, 79 and 792; thence still following the Southern bank of the Little Usutu river across Swazi Area No. 10 to cross the existing Mbabane-Mhlambanyati road; thence continuing across Swazi Area No. 10 along the Umcwaba River to cross the Little Usutu River approximately one mile downstream of its junction with the Northern bank of the Motjane river across Farm 73; thence continuing along the Northern bank of the Motjane river, after crossing the Mtambani river across Farm 84/2 just cutting through the Western Corner of Farm 119; thence across the Habosha river on Farm 84/1 thence across the Motjane river; thence following the Southern bank of the Motjane river across Farm A.30/P and across the Eastern corner of Farm B.30/P; thence in a Northerly direction across Swazi Area No. 9 along the Western bank of the Motjane river; thence across Farm A.30/P still following the bank of the Motjane river; thence in a Northerly direction along the Motjane river across Farm 739 up to the Southern boundary of Farm 742; then across Farm 742 in an Easterly direction to cross the existing Ermelo-Mbabane road at a point approximately 3/4 mile from the Swaziland Transvaal border at Oshoek; thence in an Easterly direction and close to the Northern boundary of Farm 796 where the Railway line terminates.[Amended G.N.6/1962]
(b)Branching off from the existing line of travel of the Swaziland Railway, (as set out in paragraph (a)), on the Remaining Extent of Farm 34 at a point north of Matsapa Station and just before the crossing of the Little Usutu River; thence following the east bank of the river for approximately 1,300 yards, thence turning right in a general north-easterly direction across the Remaining Extent of Farm 34 up to the boundary of Portion 1 of Farm 34; thence across the north-western boundary of Portion 1 of Farm 34.[Amended G.N.101/1963]

Second Schedule (In terms of subsection (2) of section 37)

PointRiverMaximum quantity which Railway may abstract and use.

(Gallons per 24 hours)
Farm No. 177
District Stegi		Black Umbuluzi150,000
Swazi Area 28
District Stegi		Great Usutu150,000
Farm No. 8
District Manzini		Great Usutu400,000
Farm No. 792
District Mbabane		Little Usutu150,000
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History of this document

01 December 1998 this version
Consolidation
06 April 1962
Commenced