CHAPTER 33:01
AFRICANS ON PRIVATE ESTATES

ARRANGEMENT OF SECTIONS

   SECTION

   1.   Short title

   2.   Application of the Act

   3.   Interpretation

   4.   Registers to be kept

   5.   Who may apply for registration

   6.   Trespassers

   7.   Applications to Tribunal

   8.   Additions to register

   9.   Right of Minister to enter and obtain information

   10.   Allocation of land

   11.   Liability to pay rent

   12.   When rent is due and recoverable

   13.   Receipts for rent paid or certificates

   14.   Resident Africans may work for wages

   15.   Owner to deduct rent from wages

   16.   Economic crops

   17.   Disputes between resident Africans and owners

   18.   Establishment of the Tribunal

   19.   Resident Africans not to quit estate except on lawful order

   20.   Order to quit

   21.   Power to make orders

   22.   Compensation for disturbance

   23.   Offence to disobey order

   24.   Resettlement of evicted resident Africans

   25.   Special agreement

   26.   Minister may make schemes

   27.   Effect of Act

   28.   Penalty

   29.   Regulations and rules

12 of 1962
26 of 1971
26 of 1988
G.N. 43/1963
1/1965
137/1966
166/1967

An Act to regulate the conditions on which Africans may reside on Private Estates, the Orderly Development of Agricultural Land and Matters connected therewith

[17TH AUGUST 1962]

1.   Short title

   This Act may be cited as the Africans on Private Estates Act.

2.   Application of the Act

   (1) This Act shall apply to such part or parts of Malawi as the Minister may, by notice published in the Gazette, direct.

   (2) This Act shall not apply to any African who is in occupation of land on an estate by virtue of a valid lease or tenancy agreement for a period of not less than two years.

   (3) The Minister may by notice published in the Gazette suspend or rescind the application of this Act to any part or parts of Malawi to which it has been applied.

3.   Interpretation

   In this Act, unless the context otherwise requires—

   “African” means any person who is a member of an African community indigenous to Malawi, Tanzania, Zambia or Mozambique;

   “economic crops” means such crops as are grown for sale and not for the consumption of the grower or his family;

   “estate” means an undivided area of land, the legal right to occupy which is vested in some person other than the Government;

   “exempted African” in relation to an estate means any African employee serving the owner of such estate otherwise than under this Act and living in a dwelling constructed at the expense of the owner and, during the registration period referred to in section 5, includes an African residing on an estate in pursuance of a contract which was a special agreement under the Africans on Private Estates Ordinance, 1952 (now repealed);

   “operative date” means the date upon which this Act comes into operation in relation to any estate by reason of its application to such estate under section 2 (1);

   “owner” means any person, other than the Government, having a legal right, otherwise than under this Act, to occupy the estate in respect of which such term is used;

   “resident African” means any African who is entitled to be registered as such under this Act;

   “Tribunal” means the Africans on Private Estates Tribunal established under section 18;

   “special agreement” means a written agreement made in accordance with section 25;

   “unmarried woman” means a woman who has not married and includes—

   (a)   a widow who has not remarried;

   (b)   a divorced woman who has not remarried;

   (c)   a woman whose husband has been absent from Malawi for a continuous period of two years or upwards and is still absent;

   (d)   a woman the whereabouts of whose husband have been unknown for a continuous period of two years or upwards and whose whereabouts are still unknown.

4.   Registers to be kept

   (1) Every owner shall register all resident Africans on his estate in a register which shall be in such form and contain such particulars as the Minister may prescribe.

   (2) Every resident African registered under subsection (1) shall be supplied by the owner with a document in the form prescribed by the Minister certifying his registration.

   (3) Every owner shall keep a separate register, which shall be in such form and contain such particulars as the Minister may prescribe, of all Africans who enter his estate under a special agreement.

   (4) Every owner who contravenes this section shall be guilty of an offence.

5.   Who may apply for registration

   (1) Every male African over the apparent age of 18 years and every unmarried African woman over the apparent age of 18 years who, on the operative date, was resident on an estate, shall be entitled, on application to the owner of the estate, to be registered as a resident African. Every application for registration shall, subject as hereinafter provided, be made within the period (hereinafter referred to as the registration period) of six months after the operative date:

   Provided that—

   (a)   an exempted African shall not be entitled to apply for registration;

   (b)   an African, who was party to an agreement, in force on the operative date, for which approval was applied under section 25 but which was not approved before the expiration of the registration period, may apply, within one month after such expiration, for registration as a resident African.

   (2) No African shall be deemed to be resident on any estate for the purposes of subsection (1) unless he was, on the operative date, residing in a dwelling on the estate constructed by him while he was not employed by the owner, or was residing on the estate with the knowledge of the owner.

   (3) Any African who satisfies the Tribunal that he has resided on an estate continuously since the 1st day of January, 1962, shall be deemed to have been residing on that estate with the knowledge of the owner on the operative date.

   (4) Any person applying for registration shall supply full particulars of the members of his family residing with him on the estate, including wives, children and any other dependants and the approximate ages of such children and dependants and of the dwellings and other buildings occupied or used by him.

6.   Newcomers and trespassers

   (1) Any owner who consents to any African, other than an exempted African, residing, after the expiration of the registration period, on his estate, for the purpose of growing any economic crop for sale to, or performing any agricultural work for, that owner shall be guilty of an offence, unless such African is a person in respect of whom particulars have been registered under this Act, or in respect of whom application for registration or for approval of a special agreement is pending.

   (2) After the operative date, any African who resides on or cultivates any estate or part thereof or exercises any rights conferred by section 10 (2) on resident Africans over or in relation to any estate shall be a trespasser, and guilty of an offence, unless he is a person of whom particulars have been registered under this Act or in respect of whom application for registration or for approval of a special agreement is pending.

7.   Applications to Tribunal

   (1) Any African who has applied unsuccessfully to an owner for registration may, within one month after refusal of registration, apply to the Tribunal for an order that the owner grant his application.

   (2) An application for registration shall, for the purposes of section 6, be deemed to be pending from the time when it is made until it is granted or refused by the owner and, if refused, until the time for application to the Tribunal under subsection (1) has expired and, if application is so made to the Tribunal, until the Tribunal has given its decision on such application.

8.   Additions to register

   Any African who, after the operative date, comes to reside on an estate, in pursuance of a valid marriage to an unmarried woman who is registered as a resident African, shall apply to the owner for and shall be entitled to registration as a resident African. No other person shall be entitled to registration as a resident African after the expiration of the registration period except in pursuance of an order of the Tribunal, or in accordance with proviso (b) to section 5 (1). A child, or other dependant brought up as a child, of a registered resident African may on attaining the age of 18 years apply to the owner for the occupation of land on the estate under a special agreement and such application shall be granted.

9.   Right of Minister to enter and obtain information

   (1) The Minister or any other person duly authorized by him in that behalf shall have the right to enter upon any estate at all reasonable times for the purpose of inspecting the registers and enforcing this Act, and investigating the conditions of Africans residing or working on the estate.

   (2) The owner of every estate shall furnish, on demand, to the Minister or any person duly authorized by him, full information regarding entries in the registers maintained by him and regarding matters which are required to be entered in such registers.

   (3) Any owner who fails to comply with the requirements of this section shall be guilty of an offence.

10.   Allocation of land

   (1) Every registered resident African shall be entitled to the continuous use, on the estate in respect of which he is registered, of a suitable site for a dwelling and reasonable outbuildings for himself and each registered wife and, if practicable, of an area of land for cultivation adequate for growing the usual food crops for the sustenance of himself and those of his wives and dependants whose particulars have been registered, and at a reasonable distance from his dwelling.

   (2) Every registered resident African and every member of his family or other dependant of whom particulars have been registered shall be entitled to cut or remove grass, firewood (if available) and other materials necessary for his domestic purposes (including the erection and maintenance of buildings) from land allocated to him for cultivation and from any part of the estate which has not been set aside by the owner for the protection of streams and water supplies or for the protection of land from soil erosion, and which has not been cultivated, re-afforested or set aside for controlled cutting under a silvicultural management scheme.

   (3) The operation of this section shall be subject to any other written law for the time being in force in Malawi.

11.   Liability to pay rent

   (1) Subject to subsections (2), (3) and (4), every registered resident African shall be liable to pay to the owner of the estate, in respect of which he is registered, a rent of £1 per annum in respect of each dwelling occupied by him on the estate. For the purposes of this section a dwelling shall be deemed to include a group of buildings occupied by a wife.

   (2) The following persons shall be exempt from the payment of rent under the provisions of subsection (1)—

   (a)   an unmarried woman;

   (b)   a married woman whose husband is registered as a resident African in respect of the same estate;

   (c)   a person exempt from payment of tax by virtue of the Taxation Act;

   (d)   a person who on the 30th day of June, 1942, was a resident native on the estate under the Natives on Private Estates Ordinance, 1928 (now repealed) or is a descendant according to customary law, of such a person;

   (e)   a resident African who, in the opinion of the Tribunal, is without the means to pay rent and is unable to acquire the means due to sickness, age, infirmity or preoccupation with the care of infant children.

   (3) A male resident African who has two wives who live in separate dwellings on the same estate shall be liable to pay rent in respect only of one dwelling:

   Provided that—

   (a)   any male resident African who has more than two but not more than three wives who live in separate dwellings on the same estate shall be liable to pay rent in respect of the third dwelling at the rate of six shillings and eightpence per annum;

   (b)   a resident African who has more than three wives living in separate dwellings on the same estate shall be liable to pay additional rent in respect of each dwelling after the first two at the rate of ten shillings per annum.

   (4) Every male resident African, who has wives living on separate estates belonging to different owners, shall be liable to pay rent in respect of the dwellings on each separate estate in accordance with subsections (1), (2) and (3).

12.   When rent is due and recoverable

   Rent shall be due in advance on the 1st day of January in each year and shall become recoverable from the 1st day of July next after it becomes due:

   Provided that no rent shall be payable in respect of the period from the 1st day of July until the 31st day of December, 1962.

13.   Receipts for rent paid or certificates

   (1) Every owner who receives rent from a resident African shall give to such resident African a written receipt therefor specifying the period in respect of which rent was received.

   (2) Every owner for whom any resident African has worked for wages in accordance with this Act shall give to such resident African a certificate specifying the period of work and stating the amount deducted from his wages in respect of rent payable under this Act.

14.   Resident Africans may work for wages

   (1) Notwithstanding anything hereinbefore contained, a resident African may elect to work for wages for the owner of the estate upon which he resides.

   (2) Every resident African who is liable to pay rent under this Act shall before the 30th day of September in each year inform the owner of the estate whether he desires to pay his rent or whether he desires to offer to work for such owner for any and, if so, what period during the next year.

   (3) Where such resident African has elected to offer to work for wages for the owner of the estate, the owner shall offer such resident African suitable work on the estate within a reasonable distance from his dwelling for a period sufficient to enable such resident African to pay his rent in accordance with section 15, or such lesser period as the resident African may elect, or shall provide such resident African with such reasonable facilities for growing economic crops in accordance with section 16 as may be expected to produce sufficient cash return to pay the rent.

   (4) Where a resident African has elected to work for wages for the owner of the estate upon which he resides, he shall not be liable to pay the rent if the owner has failed or is unwilling to offer such resident African suitable work within a reasonable distance of his dwelling during the months in which he has elected to work or to provide facilities for growing economic crops.

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