CHAPTER 50:05
AUTOMOTIVE TRADES REGISTRATION AND FAIR PRACTICES

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

PART II
ADMINISTRATION

A. The Automotive Trades Registration Board

   3.   Establishment of Automotive Trades Registration Board

   4.   Composition of the Board

   5.   Board may co-opt persons to attend meetings

   6.   Secretary/Registrar

   7.   Tenure of office of Board members

   8.   Remuneration of members of the Board

   9.   Meetings of the Board

   10.   Non-liability of members of the Board

   11.   Member to declare pecuniary interests

B. Functions and Duties of the Board

   12.   Functions of the Board

PART III
REGISTRATION OF COMMERCIAL GARAGE OWNERS AND COMMERCIAL GARAGES

   13.   Compulsory registration of garage owners and garages

   14.   Register of proprietors and garages

   15.   Application for registration

   16.   Applicant to furnish description of premises

   17.   Consideration by and report of the Board

   18.   Minister to decide application

   19.   Registration or refusal

   20.   Duration of registration

   21.   Annual renewal of registration

PART IV
SURRENDER, SUSPENSION AND CANCELLATION OF REGISTRATION

   22.   Surrender of registration

   23.   Complaints to and hearings by the Board

   24.   Minister to decide complaints

   25.   Implementation of decision of Minister under section 24

   26.   Board-initiated investigation

   27.   Minister to decide on report of the Board

   28.   Implementation of decision of Minister under section 27

   29.   Minister may direct investigation by the Board

   30.   Power of the Minister re registration

   31.   Effect of cancellation

   32.   Suspension of registration

PART V
MISCELLANEOUS

   33.   Duty of registered proprietor on repair of vehicle or engine

   34.   Duty of registered proprietor who is agent of manufacturer

   35.   Regulations

   36.   Exemptions

   37.   Registration not in lieu of licensing or registration, etc., under other written laws

   38.   Not applicable to Government or local authorities

19 of 1971
51 of 1971
G.N. 151/1972

An Act to provide for the registration of persons engaged for profit or reward in the business of the assembly, sale or repair of motor vehicles or internal combustion or other motor vehicle engines or of any electrical or mechanical parts or accessories of such vehicles or engines or engaged in businesses incidental to the maintenance or repair thereof and to provide for the protection of the general public from unfair or unconscionable practices by such persons and for matters related or incidental to any of the purposes aforesaid

[30TH SEPTEMBER 1972]

PART I
PRELIMINARY

1.   Short title, commencement and application

   This Act may be cited as the Automotive Trades Registration and Fair Practices Act, and shall come into operation on such date as the Minister may appoint by notice published in the Gazette:

   Provided that, by one notice or by separate notices, different dates may be appointed for the coming into operation of this Act in relation to different specified Regions, local authority areas, Districts or places in Malawi.

2.   Interpretation

   In this Act unless the context otherwise requires—

   “annual renewal of registration meeting” means that meeting of the Board, held annually, at which renewals of registration are considered pursuant to section 21;

   “automotive trade” means the commercial garage business operating throughout Malawi;

   “Board” means the Automotive Trades Registration Board established by section 3;

*For parts of Malawi in relation to which Act is in operation see subordinate legislation at page 22 of this Chapter.

   “Chairman” means the Chairman of the Board, appointed and designated pursuant to section 4 (2) (a);

   “commercial garage” means any garage operated as a business for profit or reward;

   “date of commencement” means, in relation to any Region, Local Government Area, District or place in Malawi, the date of the coming into operation of this Act, in such Region, Area, District or place, by notice pursuant to section 1 ;

   “decision of the Minister” means any decision in respect of registration under this Act, made by the Minister under section 18, 24, 27 or 29;

   “garage” means any premises used for the purpose of the assembly, repair or renovation of motor vehicles or of internal combustion or other engines designed to be the propelling force of such vehicles; or used for the purpose of the assembly, repair or renovation of mechanical or electrical components, parts or accessories of such vehicles or engines; or used for the assembly, repair or renovation of motor vehicle bodies, or for the breaking-up of old or damaged motor vehicles for scrap or salvage; or for the sale of new or second-hand motor vehicles; or for the re-treading or re-capping or other such renovation of motor vehicle tyres; and includes premises used for the manufacture, assembly, repair or renovation of self-propelled farm machinery; but does not include premises used solely as a petrol service station;

   “investigation” means an investigation by the Board into the business conduct or practices of a registered proprietor pursuant to Part IV;

   “motor vehicle” means any self-propelled vehicle whose propulsive force is provided by a built-in internal combustion or other engine, and includes a motor car, motor cycle and self-propelled farm and road machinery but shall not include any ship or aircraft;

   “petrol service station” means any premises used for the purpose of the sale of petrol and oil for delivery on such premises directly into motor vehicles for immediate use therein; for the sale of petrol or oil in containers and quantities of not more than five gallons in respect of each sale; for the sale and installation of tyres for motor vehicles; for tyre repairs; and for the sale or replacement and the installation of electric bulbs, windscreen wipers and other minor motor vehicle accessories;

   “premises” means any land and includes any buildings and trade fixtures upon such land;

   “Public Service” bears the meaning ascribed to the term “public service” by section 98 of the Constitution;

   “Register” means the Register of Commercial Garage Proprietors and Commercial Garages kept pursuant to section 14;

   “registered garage” means a commercial garage premises registered as the place of business of a registered proprietor under Part III;

   “registered proprietor” means the proprietor of a commercial garage registered in respect of such garage under Part III;

   “Registrar” means the Secretary to the Board designated pursuant to section 6;

   “registration” means the registration of commercial garage proprietors and commercial garages under Part III;

   “registration year” means the twelve month period from 1st January to 31st December, or any lesser period ending on the 31st December, during which any registration under this Act is subsisting;

   “renewal of registration” means the registration, pursuant to section 21, of an existing registered proprietor in respect of a particular registered garage for the registration year immediately following the year in relation to which the existing registration is subsisting;

   “second-hand part” means any mechanical or electrical part of any motor vehicle or internal combustion or other engine which has previously been installed and used in any such vehicle or engine;

   “second-hand vehicle” means any motor vehicle which, since its manufacture and initial sale has been in ordinary use;

   “Secretary” means the Secretary to the Board, designated by the Minister pursuant to section 6;

   “transfer of registration” means the transfer of the registration of a registered proprietor in respect of a registered garage to another person;

   “Vice-Chairman” means the Vice-Chairman of the Board appointed and designated pursuant to section 4 (2) (b).

PART II
ADMINISTRATION

A. The Automotive Trades Registration Board

3.   Establishment of Automotive Trades Registration Board

   There is hereby established a board to be known as the Automotive Trades Registration Board (hereinafter referred to as “the Board”).

4.   Composition of the Board

   (1) The Minister shall, by notice in the Gazette, appoint the members of the Board other than the ex officio members.

   (2) The Board shall consist of—

   (a)   one member designated as Chairman by the Minister;

   (b)   one member designated as Vice-Chairman by the Minister;

   (c)   the Chairman of the Price Control Board established pursuant to regulations made under the Control of Goods Act;

   (d)   one member representing the Malawi Congress Party;

   (e)   the Director of Plant and Vehicles, ex officio;

   (f)   the Road Traffic Commissioner, ex officio.

   (3) The Minister may appoint to the Board such additional Members as he deems essential to the Board in the exercise of its powers and functions.

   (4) No person shall be appointed to the Board who—

   (a)   is an undischarged bankrupt;

   (b)   has, within three years last past, been convicted of an offence under this Act;

   (c)   has, within three years last past, been convicted of an offence under any written law and been sentenced therefor to imprisonment for a term of six months or more without the option of a fine;

   (d)   has, within five years last past, been convicted of an offence involving fraud or dishonesty.

   (5) Members of the Board shall not, by virtue only of their appointments to the Board, be deemed to be officers in the Public Service.

   (6) The names of all members of the Board as first constituted and every change in membership thereof shall be published in the Gazette.

5.   Board may co-opt persons to attend meetings

   (1) The Board may, with the consent of the Minister, co-opt any one or more persons to attend any particular meeting or series of meetings for the purpose of assisting or advising the Board in respect of any particular matter under consideration by the Board.

   (2) Any person co-opted pursuant to subsection (1) may take part in the deliberations of the Board at any meeting he so attends, but shall have no voting powers.

6.   Secretary/ Registrar

   (1) There shall be a Secretary to the Board who shall be an officer in the Public Service and shall be designated as Secretary by the Minister.

   (2) The Secretary to the Board shall be the Registrar for all of the purposes of this Act.

7.   Tunure of office of Board members

   (1) Members of the Board, other than ex officio members, shall, subject to the provisions of this section, hold office for such period, being not less than two years, as may be specified in their respective appointments.

   (2) Ex officio members of the Board shall hold office as such so long as they hold the public office whereby they are members of the Board pursuant to this Act.

   (3) A retiring member shall be eligible for re-appointment.

   (4) On the expiry of the period for which a member, other than an ex officio member, is appointed he shall continue to hold office until his successor has been appointed, but in no case shall such further period exceed three months.

   (5) The office of a member other than an ex officio member shall be vacated—

   (a)   upon his death;

   (b)   if he is adjudged a bankrupt;

   (c)   if he is convicted of an offence under this Act;

   (d)   if he is convicted of an offence under any other written law and sentenced therefor to imprisonment for a term of six months or more without the option of a fine;

   (e)   if he is convicted of an offence involving fraud or dishonesty;

   (f)   if he is absent from three consecutive meetings of the Board without the permission of the Board;

   (g)   upon the expiry of one month’s notice in writing of his intention to resign his said office given by him to the Minister;

   (h)   upon the expiry of one month’s notice in writing terminating his appointment to such office given to him by the Minister;

   (i)   if he becomes mentally or physically incapable of performing his duties as a member of the Board;

   (j)   if, being registered as a registered proprietor under this Act, his registration has been cancelled on the direction of the Minister.

8.   Remuneration of members of the Board

   Any member of the Board who is not an officer in the Public Service shall be paid such remuneration and allowances, if any, as the Minister may in his case fix.

9.   Meetings of the Board

   (1) The Board may meet at such places and times as the Chairman may determine or as he may be directed by the Minister and such meetings shall be convened by notice to the members given by the Chairman.

   (2) In the absence of the Chairman from any meeting of the Board the Vice-Chairman shall preside, and in the absence of both the Chairman and the Vice-Chairman from any such meeting the members present shall elect one of their number to preside at that meeting and the person so elected shall have all of the powers and shall perform all of the duties of the Chairman for that meeting.

   (3) Save where otherwise provided by this Act, the Board shall conduct its proceedings in such manner as may be directed by the Minister or, in the absence of such direction, in such manner as the Board deems meet.

   (4) Minutes of each meeting shall be kept by the Secretary and shall be confirmed at the succeeding meeting by the Chairman, or, in his absence, by the Vice-Chairman or member presiding, as the case may be.

   (5) Three members of the Board shall form a quorum.

   (6) At all meetings of the Board the person presiding shall have a deliberative vote and in the event of an equality of votes shall also have a casting vote.

10.   Non-liability of members of the Board

   No member of the Board shall be personally liable for any act or default of his, or of the Board, done in the exercise in good faith of the functions of the Board.

11.   Member to declare pecuniary interests

   (1) If a member of the Board or his spouse, or any company of which he or she is a director or major shareholder, or any partner of such member or of his spouse has or acquires any pecuniary interest, direct or indirect, in any matter in which his private interests conflict with his duties as a member and which is the subject of consideration by the Board he shall, as soon as he becomes aware of such interest in such matter, disclose the facts relating thereto to the Board and the Minister.

   (2) A member referred to in subsection (1) shall not take part in the consideration of, or vote on, any question before the Board which relates to the matter referred to in that subsection.

   (3) For the purposes of this section, the expression “major shareholder” means any person who, at the relevant time, in his own right or by right of any other person, has the power to exercise or control not less than ten per cent of the voting rights in the relevant company, whether by reason of share holdings, debenture holdings, proxy or otherwise.

B. Functions and Duties of the Board

12.   Functions of the Board

   The functions and duties of the Board shall be—

   (a)   to advise the Minister on matters relating to—

      (i)   the maintenance and improvement of the services, facilities and workmanship offered to the general public by commercial garages within Malawi;

      (ii)   what minimum standards of workmanship and materials the proprietors of commercial garages should use and maintain in their operations in order to be registered under this Act or to retain such registration;

      (iii)   such other matters concerning the automotive trade in Malawi as the Board deems meet;

      (iv)   any question concerning the automotive trade submitted to the Board by the Minister for its opinion and advice thereon;

   (b)   to keep and maintain a register of commercial garage proprietors and commercial garages in Malawi pursuant to Part III;

   (c)   to hear complaints against commercial garage proprietors pursuant to Part IV and to make recommendations to the Minister thereon.

PART III
REGISTRATION OF COMMERCIAL GARAGE OWNERS AND COMMERCIAL GARAGES

13.   Compulsory registration of garage owners and garages

   (1) After six months from the date of commencement, no person shall carry on the business of a commercial garage on any premises without being registered as a commercial garage proprietor (hereinafter called “the registered proprietor”) in respect of such premises, nor shall such proprietor carry on such business on such premises without the said premises being registered as a commercial garage (hereinafter called a “registered garage”) under this Act.

   (2) Any person who, after six months from the date of commencement—

   (a)   carries on the business of a commercial garage without being registered as a registered proprietor; or

   (b)   carries on the business of a commercial garage on any premises without the said premises being registered as a registered garage,

shall be guilty of an offence and liable to a fine of K1,000 and to imprisonment for one year.

   (3) Where a company or other body corporate is found guilty of an offence under subsection (2) there shall be imposed in lieu of the penalty provided by the said subsection, a penalty of K3,000.

   (4) Subsection (2) (b) shall not apply to any registered proprietor carrying on business at the scene of any breakdown or accident for the purpose of dealing with such breakdown or accident.

14.   Register of proprietors and garages

   The Registrar, under the direction of the Board, shall keep, in the prescribed form, a Register of Commercial Garage Proprietors and Commercial Garages (hereinafter called “the Register”) for the purposes of this Act.

15.   Application for registration

   (1) An application for registration under this Act or for a renewal or transfer of such registration shall be made to the Board in the manner prescribed.

   (2) Not less than two weeks before making his application to the Board under this section, the applicant shall cause notice, in the prescribed form, of his intention to apply for registration, renewal or transfer to be published in the Gazette and in one issue of a newspaper in general circulation in the area in which the relevant garage is located.

   (3) Where an application is made in respect of a partnership firm., the partners shall nominate one member of the firm, who shall, upon the application being granted by the Minister, be registered as the proprietor in respect of the premises registered pursuant to such application.

   (4) Every application for registration under this Act, or for renewal or transfer of such registration shall be accompanied with the appropriate prescribed fee.

   (5) Any application for a transfer of registration under this Act may be made by the intended transferee or transferor and such application shall be accompanied with the current Certificate of Registration of the registered proprietor for purposes of cancellation upon the grant of the applied for transfer.

   (6) Where any person carries on the business of a commercial garage in more than one premises a separate application shall be made by such person in respect of each separate premises in which such business is carried on.

16.   Applicant to furnish description of premises

   Every applicant for registration, or for renewal of registration, under this Act, shall, at the time of his application, furnish to the Board a description in writing of the premises used or proposed to be used by him as a commercial garage, and shall, if so required by the Board, furnish a map or plan of such premises.

17.   Consideration by and report of the Board

   (1) As soon as is practicable after receiving an application under section 15 the Board shall consider the same in accordance with this section and report thereon in writing to the Minister—

   (a)   in the case of an application for a new registration, whether—

      (i)   the applicant is already registered under this Act in respect of other premises;

      (ii)   they consider the applicant a person suitable for registration;

      (iii)   they consider the premises, in respect of which the application is made, suitable for the intended uses thereof;

      (iv)   they consider the applicant reasonably capable of providing the service intended or of employing persons so capable;

      (v)   the applicant has previously been refused registration under this Act or whether any previous registration of the applicant hereunder has been cancelled by direction of the Minister and the date and cause of such cancellation;

   (b)   in the case of an application for renewal of an existing registration, whether—

      (i)   if the applicant has been registered in respect of the relevant premises during the entire past registration year, he has been the subject of any investigation under Part IV during the said period and the outcome of such investigation;

      (ii)   if the applicant has been first registered in respect of the premises, whether by way of new registration or transfer, during the past registration year, he has been the subject of any investigation under Part IV during the said period and the outcome of such investigation;

      (iii)   anything has been done to the premises during the past registration year, whether by way of alteration or reconstruction, to render them unsuitable for registration;

   (c)   in the case of a transfer of an existing registration, whether—

      (i)   the applicant is already registered in respect of other premises;

      (ii)   they consider the applicant reasonably capable of providing the service intended or of employing persons so capable;

      (iii)   the applicant has been refused registration under this Act or whether any previous registration of the applicant hereunder has been cancelled by direction of the Minister and the date and cause of such cancellation;

      (iv)   anything has been done to the premises during the past registration year, whether by way of alteration or reconstruction, to render them unsuitable for registration.

   (2) Each applicant shall be entitled to attend before the Board in person (or, if the applicant is a body corporate, by a senior director or executive of such body corporate) or to be represented thereat by a legal practitioner during the consideration of his application, and shall be entitled to be heard and to adduce evidence in respect of any matter relevant to such application.

   (3) The Board shall notify each applicant, by letter sent by ordinary post to the address given on the application, of the date, hour and place of consideration of his said application by the Board.

   (4) Having considered the application and such other matters as were adduced thereon by the applicant, or deemed relevant by the Board, the Board shall, without undue delay, forward to the Minister its report together with a copy of the application and such other documents in its possession as it deems relevant to the application.

   (5) The applicant shall not be entitled to a copy, or to be informed of the contents, of any report made to the Minister by the Board pursuant to this section.

18.   Minister to decide application

   (1) The Minister, having considered the application and the report of the Board thereon and such other documents in relation thereto as were submitted to him by the Board, shall decide whether the application should be granted or refused, and shall notify the Board of his decision.

   (2) Any decision of the Minister made pursuant to subsection (1) shall be final and shall not be subject to appeal to, or question by, any court of law, and the Minister shall not be required to assign any reasons for such decision.

19.   Registration or refusal

   (1) Whenever the Minister grants an application for registration, renewal of registration, or transfer of registration under this Part, and notifies the Board of his decision thereon, the Board shall cause the Registrar to enter such registration, renewal or transfer in the appropriate parts or part of the Register and shall notify the applicant thereof and cause notice thereof to be published in the Gazette.

   (2) Having entered any registration or renewal of registration pursuant to subsection (1) the Registrar shall, within one month thereafter, furnish the registered proprietor with a certificate of his registration as registered proprietor and of the registration of the relevant garage as a registered garage.

   (3) Having entered any transfer of registration pursuant to subsection (1) the Registrar shall, within one month thereafter, furnish the new registered proprietor with a certificate of his registration in the prescribed form as registered proprietor of the relevant registered garage together with a certified copy of the registration of the said relevant garage.

   (4) Whenever the Minister refuses an application under this Part and notifies the Board of his decision thereon, the Board shall cause the Registrar to notify the applicant, in writing, of such refusal.

20.   Duration of registration

   Registration under this Act shall be effective from the date of its entry in the Register by the Registrar and shall determine on the 1st January following unless sooner surrendered or cancelled.

21.   Annual renewal of registration

   (1) The Board shall, in the month of December of each year, hold an annual renewal of registration meeting for the purposes of renewal of registration of existing registrations for the following year:

   In this regard the Board may fix different dates in the said month of December for the holding of the annual renewal of registration meeting in respect of different places or areas in Malawi.

   (2) The Board shall, during the first week of the month of October of each year, publish, in one issue of the Gazette and in one issue of a newspaper in general circulation in Malawi, a notice setting forth the date, time and venue of such annual renewal of registration meeting, and if the said meeting is to be held on different dates in respect of different areas the said notice shall specify the place or area in respect of which each such meeting is to be held.

   (3) Application for renewal of registration shall be made pursuant to section 15 and shall be delivered to the Board not later than 21 days before the date of the relevant annual renewal of registration meeting of the Board.

   (4) Application for renewal of registration shall be considered at the relevant annual renewal of registration meeting and shall normally not be considered at any other meeting of the Board save for just cause.

   (5) The Board may adjourn any annual renewal of registration meeting from time to time until all applications for renewal of registration to be considered at such meeting have been considered by the Board.

   (6) If, in respect of any application for renewal of registration, the decision of the Minister thereon under section 18 has not been notified by the said 31st December, the existing registration shall be deemed to be extended, for the purposes of this Act, until such time in the following year as the Minister notifies his decision on such application to the Board in accordance with the said section 18.

PART IV
SURRENDER, SUSPENSION AND CANCELLATION OF REGISTRATION

22.   Surrender of registration

   Any registered proprietor of any registered garage may, at any time, by notice in writing to the Board, surrender his registration in relation to any specified registered garage, and upon receipt of such surrender the Board shall cause the Registrar to strike off the Register the registration of the said registered proprietor in relation to the said garage and also to strike off the Register the registration of the said registered garage.

23.   Complaints to and hearings by the Board

   (1) Any person who has had repairs or alterations or any other work or service done upon any motor vehicle or internal combustion or other engine or upon any mechanical or electrical parts or accessories of such motor vehicle or engine or who has had any new mechanical or electrical accessories or devices attached to such motor vehicle or engine at any registered garage and is of opinion that—

   (a)   the quality of the workmanship was bad; or

   (b)   the work was negligently executed; or

   (c)   the work executed was unnecessary; or

   (d)   the re-assembly of the said motor vehicle or engine, after the work was completed, was negligently executed; or

   (e)   the replacement parts fitted were of inferior quality or not reasonably suited to the purpose for which they were installed; or

   (f)   the replacement parts fitted were of inferior quality or second-hand parts and were so fitted without his knowledge or consent; or

   (g)   while the motor vehicle or internal combustion or other engine was in the said registered garage for the purposes of the said work, parts thereof, unrelated to and not involved in the said work, were removed therefrom without his knowledge or consent and were replaced by parts of inferior quality; or

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