CHAPTER 190
FENCING ACT

Arrangement of Sections

   Section

   1.   Short title

   2.   Application

   3.   Interpretation

   4.   Fence between lands of different owners to be at cost of each

   5.   Notice to any person required to contribute towards construction of fence

   6.   Arbitration provided for

   7.   Construction of fence on failure to carry out agreement or award

   8.   When contributions may be paid by installments

   9.   Proceedings in case of absent owners

   10.   Tenants to pay interest on cost of fences

   11.   Tenant, with right to purchase, to pay cost of fence in addition to purchase money

   12.   Repairs

   13.   Notice of required repairs to owner of adjoining land

   14.   Bush may be cleared for fencing

   15.   Construction of certain fences

   16.   Provision when river is boundary between lands

   17.   Damages against person neglecting to clear inflammable matter from boundary line

   18.   Right of way to construct fences

   19.   Landlord may defend proceedings against tenant

   20.   Subordinate courts to have jurisdiction

   21.   Penalty for wilful damage to fence or gate

   22.   Accidental injury

   23.   Regulations

   24.   Existing contracts not affected by this Act

   25.   Existing fences

      FIRST SCHEDULE

      SECOND SCHEDULE

      THIRD SCHEDULE

      FOURTH SCHEDULE

      FIFTH SCHEDULE

AN ACT

to regulate the erection and maintenance of dividing fences; and to provide for matters incidental thereto or connected therewith.

[1st October, 1949]

Act 19 of 1949,

Act 32 of 1950,

Act 37 of 1953,

Act 16 of 1960,

Act 61 of 1963,

Act 69 of 1965,

Act 13 of 1994.

GN 319 of 1964,

GN 497 of 1964.

1.   Short title

This Act may be cited as the Fencing Act.

2.   Application

   (1) This Act shall apply to such areas as the Minister may, by statutory notice, declare.

      (2)—

      (a)   Before this Act is applied to any area, the Minister shall cause to be published in the Gazette notice of the intention to apply the provisions of the Act to that area.

      (b)   The Minister shall not apply this Act to any area unless the majority of owners of occupied farms in the area present and voting have expressed themselves in favour of such application at a meeting convened in accordance with the provisions of sub-section (3).

   (3) On the publication of such notice the District Secretary of the area concerned shall forthwith convene a meeting of all owners of occupied farms in the area concerned by serving a written notice by hand or registered post on such owners fixing a time and place for the holding of the meeting and setting forth the object of the meeting. The notice shall be given at least thirty days before the date fixed for the meeting.

   (4) At the meeting the following provisions shall apply—

      (a)   the District Secretary, who shall have no vote, shall act as chairman;

      (b)   each owner shall be allowed one vote in respect of each farm occupied by him in the area concerned;

      (c)   each owner may vote either in person or by proxy;

      (d)   when the majority of owners present so desire a vote shall be by secret ballot; and

      (e)   a resolution shall be passed if a majority of the owners present in person or by proxy vote in favour thereof.

   (5) The District Secretary shall transmit to the Minister a certificate under his hand setting forth the result of the meeting.

[S 2 am by GN 319 of 1964.]

3.   Interpretation

   (1) In this Act, unless the context otherwise requires—

“arbitration” means arbitration in accordance with the provisions of the Arbitration Act or any Act substituted therefor;

“dividing fence” means a fence separating the lands of different owners and of a type which such owners may agree upon, or, in the event of disagreement, which may be settled by arbitration;

“owner” means—

      (a)   any person holding land in fee simple or directly from the President under any grant, lease, license or similar title;

      (b)   a city council, a municipal council or township council in respect of land vested in it or set aside for its use;

      (c)   any person lawfully holding land in accordance with the provisions of an agreement which entitles such person to obtain title thereto on the fulfilment by him of the conditions prescribed by such agreement;

      (d)   the President in respect of unalienated State land and the roads or portions of roads set out in the Fourth Schedule;

      (e)   the President in respect of unalienated former Trust Land.

   (2) The Minister may, by statutory notice, add to or amend the Fourth Schedule.

[S 3 am by Act 32 of 1950, 69 of 1965; GN 319 of 1964.]

4.   Fence between lands of different owners to be at cost of each

The owners of adjoining lands not divided by a sufficient fence shall be liable to join in or contribute to the construction of a dividing fence between such lands in equal proportions.

5.   Notice to any person required to contribute towards construction of fence

Any person desiring any other person to contribute to the construction of a dividing fence under the provisions of section 4 may serve on such person a notice in writing to fence, which shall specify the boundary to be fenced and the type offence proposed to be constructed, and shall contain a proposal for fencing the same.

6.   Arbitration provided for

If within three months after the service of any notice to fence under the provisions of section 5, the person serving and the person served with such notice do not agree as to the type of fence to be erected, and the position thereof, any of such matters as to which there is no agreement shall be settled by arbitration. In making any award, the arbitrator shall be guided, as to which type of fence such arbitrator may order or award to be constructed, by the minimum standard fence described in the Fifth Schedule.

[S 6 am by Act 37 of 1953.]

7.   Construction of fence on failure to carry out agreement or award

If the person serving and the person served with such notice agree as to the matters aforesaid relating to the construction of such fence, or if, in default of such agreement, an arbitrator is appointed and makes an award, and if in either case either of such persons fails within the time named in that behalf in such agreement or award, or, if no such time is named, within three months after the date of such agreement or award, to perform his part of such agreement or to comply with such award, then the other of such persons may construct the whole fence as agreed upon or awarded by such agreement or award, and may recover in any court of competent jurisdiction such part of the cost of constructing the same as may have to be contributed by the other of such persons.

8.   When contributions may be paid by installments

   (1) If any person is called upon under this Act to join in or contribute to the construction of any dividing fence, and such person is unable or unwilling to pay forthwith the amount or any part thereof which he is or becomes liable to pay, and within one month after the amount which he is liable to pay has been fixed, gives notice to the person calling upon him to join in or contribute as aforesaid that he desires to pay such amount by installments, the following provisions shall apply—

      (a)   the amount payable by such person, or such part thereof as he is not willing to pay as aforesaid, together with interest thereon at the rate of six per centum per annum shall be paid by equal yearly installments;

      (b)   the installments shall be so calculated and fixed that the said capital amount and interest shall be paid off in a period of five years if such capital amount does not exceed twenty ngwee, and of ten years if it does exceed twenty ngwee;

      (c)   the said periods of five or ten years, as the case may be, shall be calculated from the date of the notice to join in or contribute hereinbefore mentioned;

      (d)   the installments shall be paid in the manner more particularly set forth in the First and Second Schedules.

   (2) Any owner who has become liable to pay installments in accordance with the provisions of sub-section (1) may at any time during the aforementioned periods of five or ten years, as the case may be, pay the value at that time of the unpaid installments in one sum as shown in the Third Schedule.

9.   Proceedings in case of absent owners

   (1) The owner of any land who requires the construction of a dividing fence between his land and any adjoining alienated land which is unoccupied, or the owner of which cannot be found, shall insert in the Gazette and in a newspaper (if any) published or circulating in the district in which such adjoining land is situated, at least once a month during three consecutive months, a notice addressed to the owner of such land, describing him as the owner of such land, requiring him to contribute to the construction of the fence, and may then proceed ex parte to obtain from a subordinate court of the first or second class an order authorising the construction of such fence, and specifying the type of fence to be constructed and the position thereof, and may construct a fence in compliance with such order.

   (2) The owner of the land who requires the construction of a fence as aforesaid may, on the completion of such fence as aforesaid and on furnishing to the subordinate court such particulars as may be required by the said subordinate court, request that a certificate be prepared and furnished to him setting out the proportion of the cost of fencing regarded by the subordinate court as properly chargeable to the owner of the adjoining land.

   (3) The Registrar of Deeds, on receiving a certificate from the owner of the land, shall make an entry thereof in respect of the land affected. Such entry shall constitute a charge on the land which shall—

      (a)   rank from the date of entry; and

      (b)   bear interest at six per centum per annum.

10.   Tenants to pay interest on cost of fences

   (1) When any fence is constructed under the provisions of this Act dividing any lands, held by any person as tenant of any owner, from any adjoining lands, such tenant shall pay to the owner—

      (a)   during the continuance of his lease or for a period of fifteen years, whichever period shall be the shorter, the interest calculated at the rate of six per centum per annum upon the proportion of the cost of construction paid by the owner from whom he holds his tenancy; or

      (b)   forthwith a lump sum equal to the annual interest which the tenant would be liable to pay under paragraph (a) multiplied by fifteen:

Provided that no tenant whose unexpired term of lease does not exceed one year shall be liable to pay any such interest or lump sum.

   (2) The interest which a tenant is liable to pay under paragraph (a) of sub-section (1) may at any time be redeemed on payment of the sum specified in paragraph (b) of sub-section (1), less any sums already paid by way of interest.

11.   Tenant, with right to purchase, to pay cost of fence in addition to purchase money

Any tenant having an option to purchase, or obtain an assignment of, any land occupied by him at a fixed rate shall, on completion of the purchase or assignment, pay to the owner, in augmentation and as part of the purchase money, the sum for which he would be entitled to redeem his liability to pay interest in accordance with the provisions of sub-section (2) of section10.

12.   Repairs

When any dividing fence, or any fence dividing the land of different owners erected prior to the commencement of this Act, is out of repair or has become insufficient, the owners of land on either side thereof shall be liable for the cost of repairing such fence in equal proportions.

13.   Notice of required repairs to owner of adjoining land

   (1) The owner of any land separated from any adjoining land by a dividing fence may serve a notice upon the owner of such adjoining land, requiring him to assist in repairing such fence, and if such owner refuses or neglects after the space of one week after the service of such notice to assist in repairing such fence, such first mentioned owner may repair such fence and demand and recover of and from such owner his portion of the cost of repairing the same.

   (2) If any dividing fence has been destroyed on account of the negligence of one of the adjoining owners, then the owner who has been responsible for such negligence shall be liable for the entire cost of repairing such fence.

14.   Bush may be cleared for fencing

Where any fence is to be erected on land covered with bush, the person erecting such fence shall be entitled to clear the bush for a width not exceeding 1.8288 meters on each side of the line of such fence, and may remove any tree standing in the direct line of such fence, and the cost of such clearing shall be added to and form part of the cost of the erection of such fence; and in case the person erecting such fence is entitled to recover in respect of such cost of erection from any other person, the cost of such clearing shall be apportioned accordingly.

15.   Construction of certain fences

The owner of any land may, in making a ditch and bank fence dividing his land from any adjoining land, make a ditch on such adjoining land, and use the soil taken therefrom towards making a bank, or he may make the ditch on his own land, and place the bank on such adjoining land. Where a dividing fence is made of posts and rails, or wire, or paling, the posts of such fence shall be placed on or as near as possible to the boundary line.

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