Concessions Act 1904 (No. 3 of 1904)

!..AND: ....CT 3/1904 THE CONCESSIONS ACT Date 0/ commencement: l st October, 1904 - Parts I and Il 19th Oaooa, 1908 - I'uH III 5th November. 1912 - Part IV 17th April, 1909 - Part V. Arrangement 0/ Sections PART I GENERAL 1. Short title. lAo Interpretation. PART II TITLES UNDER LAND CONCESSIONS 2.. necogotuon of grants and ccucesstons. 3. Appointment of commission. 4. Suspension of certain concessions. 5. Commnstoa to d.eline cccccartes. 6, Staying actions. 1, Establishment of towns, etc. 1I. Registers to be Kept by me Munster. 9. Priority of concessions. PART III UNCONFIRMED CONCESSIONS 10. Definition. 11. Confirmation. 12. Cancellation of rights. STATUTES OF SWAZilAND PART IV CONCESSION RENTALS 13. Interpretation. 14. Payment of rentals. I). Summary recovery of rentals. 16. Jurisdiction 0(. Magistrate's courts. 17. Interest. JlS. Requirement on disposition of land or concession. 19. Merging of rights. 19,his Concession rental to accrue to Ngwenyama in trust for the Swazi nation. PART V BURDENS ON LAND 20. Land concessions subject to certain rights. 21. Outs pans OD Swazi areas. 22. Stores and hotels 00 outspans. 23. Saving. (Part VIl repealed by P.72/l96I) 2 LAND: ACT 3(1904 s5.1-::. An Act to provide for the grant offreehold and other rights to persons holdin!! concessions, to grant relief to the holders of certain concessions not confirmed by the late Chief Court, to provide for the better collection and recovery of rents payable to the Swaziland Government in accordance WIth the terms ofanv concession. til r!'mfJ'JP tI,,,,h,. n' 'n ,I,,, "'ff",,' of tJ,,, '·cstino; in the same person of rights and under different concessions, to declare the {ow as to burdens on land held under land concessions, and to provide for me payment of the rents, royolcies and revenues collected under the said concessions into the revenue of Swaziland. PART GENERAL Short title. I. This Act may be cited as the Concessions Act, 1904. huerpretotion. lAo In this Act, unless the context otherwise requires "Minister" means the Minister for Local Administration. PART II TITLES UNDER LAND CONCESSIONS Recognition of grants and concessions. 2. No concession or grant made by or on behalf of the King or Paramount Chief of Swaziland shall be recognised by any Court of Law, save and except such as were confirmed by the Chief Court, and which have not at the first day of October. 1904. become void through forfeiture or otherwise. Where any such concession or grant was so confirmed in part only, the same shall not be recognised by any Court of Law except to the extent of such limited confirmation. Appointment of Commission. 3. It shall be lawful for the Governor to appoint a Commission of three or more persons. one of whom shall be the president thereof, to deal in manner hereinafter provided with concessions confirmed hy the Chief rn"rr Suspension of certain concessions. 4. (I) Any concession or erent by or on hp.h",lf nftheo King or Cnrnmount Phief of Swazi land confirmed by the CruefCourt conferring any of the following rights on the grantee, to wit (a) exemption from the payment of duties on goods imported into Swaziland, or from any taxation, or from any law now or hereafter in force in Swaziland; ] STATUTES OF SWAZILAND 55.3-4 (a) Explanatory Note.- At the time of the death of Paramount Chief Mbandzeni, in 1889, practically the whole of Swaziland had been apportioned out by concessions. These concessions - not only of mining and land rights, but also covering almost every conceivable (and inconceivable) field of activity - were mutually inconsistent and often irr¢¢OIleilable. ror thi" r=~Qll ",,,,vag vdH:::n, dIe 3UUlh Antcan nepubtrc ana me BMusn Government of the day arrived at an agreement, the main terms of which were recorded in the "Organic Proclamation" of September, 1890. This Proclamation contained a provision establishing a "Chief Court" of three members, which was instructed to examine the existing concessions The Chief Court declared over three hundred of these 10 be legal and binding, uur, by Laking a restrained. view ot its own powers, debarred Itself from cleaning up the contradictions and inconsistencies. Thus when, in I'}D3, the Government of the United Kingdom, by Order in Council, assumed responsibility for the novemment of Swaziland, the new Anmini~rr,",lirm f,,"n,; it had succeeded to an hertduas damnosa, One of its earliest legislative acts was to promulgate, in October, 1904, the Swaziland Administration Proclamation (No.3 of 1904). After making provision for a Dumber of administrative matters, this Proclamation, by sections 11 to 19, tackled the jigsaw puzzle of the concessions by providing that no concession, save such ,,~ h~ti h,.~'l t;'onnrmed by the Chi.. f Court, would be rceo:;ni3ed, and by JUJp,;;ndin<:; th,;; operation of all save mineral and land concessions. The Proclurnation set up a Commission, whose duties were, biter alia, to define the boundaries of land held under concession, to do everything that might be necessary "to put an end to all uncertainty and confusion", and to determine the nature, extent and validity of the rights of respective holders of conflicting <;00e"""i003. The decisions of the CQLl1JlJj~~ivll were co become effective by registration In the Deeds Office, and thereafter no action was to be maintainable in any Court of Law involving a dispute on any of the questions to be resolved by the Commission. Thus some order was evolved out of chaos. This was followed, in 1907, by a Proclamation based on the principle that one-third of the land was to be demarcated for the sole use and occupation of the Swazi. The de­ marcation was to be undertaken by a Special Commissioner. Freehold title to these areas was to be in the name of the High Commissioner. Naturally, this cutting of the knot involved a mass of legislation (Amounting, by 1912, to over forty Proclamations in all), covering procedure, surveys, costs, and so forth. Most of this was collected in 1951 into Chapter 85, the Concessions Proclamation. But nQW, over fifty years after the necessity for these procedural provisions arose, nobody save the leonl hi"tori"'n wi~he~ 10 ~tudy the ,uh;:~ ur prcceuore, me safeguards, the broad principles by which the Commissioners were to be guided in securing that the interests of the parties concerned, particularly the Swazis, were clarified and made certain. The present importance of these Proclamations, in the modem statute book, lies only in the extent to which they furnish the foundations on which all land titles in Swaziland now rest. Consequently, a careful selection has been made, and the origins of the titles to the areas reserved for the Swazi nation are 10 be found in Chapter 63, of the titles of the land concessionaires in Chapter 135. A certain amount of overlapping has been found to be unavoidable. and some of the [lrocl'nl1rlll [lrrw;~i(ln~ remain as brushwood 10 obscure thlt unimpeded vision of the trees. The rights of mining vis-a-vis land concessionaires and holders of surface rights will be found in the Mining Proclamation - Cap. 145. The Private Revenue Concession, which has its own long and intersting history, is included in Cap. 135. A.C.T. 4 ~ L.\:-;O: .cr 3/1S0.,l. ssA (0) the exclusive right to import or export arms, ammunition, explosives, ifJ,ro;,i';;;llll:'; liquors or cny OilIer aoods, \','.::,e~ or Ii:l:rc!,::!1";j:=;~ iato 0, out c; S-,-:::::i:J.r:d; (c) the exclusive d::;ht of trading, or of carrying 0:1 anv cornrnercia: or-er.nion or under.eking, Of any occupation or profession in :;;-,y ;)2.[, of Svvaz.ilcnd ; (d) the exclusive ri~;,t of currying en any incustriul or ;·.lo."ll:-:':C:I~; in-; ;~~::'L,:icn, or :':lY ~::~rr,:;::::.: or mechanical operation conccrn.nz L:.~ :-;-,in:il-; cor recovcrv of precious metals, or the reduction of rcfrectory orcs in nny part of Sv.r.ailanu; (e) the ri:;ht to, or the c.ucvc.cnr of, any ri:;b.t5 unde r :'::1:/ ccoccrslcn ,;:;;::~ lapses or becomes f()r:-~ited or cancelled: (f) gcnercily any exclusive ri:;;ht, S'l.V~ riJhts to lend or to the use thereof for agrtcultura] or grazi:l~ purposes, nnd fights to mincruls : shall, to the extentto which it coolers any ~t:811 r;:;\\!, I;:; suspeudccl l::ltii iurtucr ncnuccdon i. ,,,,,<.1,, :lG h ..r ..i"",[lar pro"iJ"d, anJ <iurins ~uch jU~I'~lujon ~h",d lu d,,, C..liLl ';"' I'~,I( 1:,-" ue recognised by any Court of L.1w: and no dealings in any such concession nor expenses in­ curred in connection therewith after the first day of October, ]~le--l., ~,i~all be taken into aCCOU:lt by the Commission appointed under section 3 ia '1S~c"~in,; ! i-c 1 .. 1,,-: of ~[;cil riaht. en Any sucb rj~ht as af<Jresaid, of which nonce has i.ccn ~I'.'::il IJY the !lOiller thereof within the period prescribed by section 1:(:?) of the Swaziland Aun-inurr.nion Pro.:iJ.lilJ.!1011 (No.3 of 19(4) shallbe uee:,:ctl and tat.en 10 te forfeited and of no force or d'~~t. (3) \Vilhin zix montl.s "ft.." 1!1l: Guvumor ;md t!;c holl!';; ,:;f ~,fl:' sucu rt~:1t I:J.'.-..: agreed as to the valcc then;:of, or after the dercrminariou of,:u..:i\ \;,ll:'':::..oy the Cctnraission , as tile case J11D.Y tc. tile Governor si.aii cause notice to tc ~i\'Cil to ,i:,:) r.8L<..,),· thereof \':r.,):j~,)r he intends to expropriate such ril;ht or not. (4) In CJ~e tbe Governor notifies his intention to expropriate any ~U<';:1 ri;;ht ,hJ.i\ thereupon become cancelled. (5) Every such riGht as aforesaid in respect Dr which notice of exp-nprianon has not been Bi~-eo shall, on the c"pir<ltion of the pcriod mentioned in ,ub-'C<.:liuJI (3), L;,;o.;u,n: of full force and effect according to its true intent uud meaning. (6) When the rent or other consideration in respect of nny concession referred to In this or the next succeeding section is payable in kind, it shall be lawful for the Commission to assess the value thereof, and such value shall from the date cf such assessment be the rent or other consideration payable in respect of such concession. (7) The Governor may, instead of expropriating any such ri,;hl as aforesaid, limit lhl' f'''(I·rri~.. !hem'of in such rnnnner and on such liolnT1~ n!l rnny be a:;;,.~.:oJ On b,,!\\"~,;n him aDd the holder thereof, end thereupon the concession conferring such riglu shaH be amended in terms of the said agreement, and shall, whcn so amended, be of full force and effect, anything to the contrary notwithstanding contained in any of the preceding sub-sections of this section. 5 STATUTES OF SWAZllA:-lD 5s.4-7 (ll) Notrung tn this section contained shall apply to concessions held by the Govern­ meot of the Transvaal: Provided always that all rents and royalties paid to the said government under any ~('ll'l(,i'~~i('ll'l ~h~ Il fnrm r"nrT .... f In", r,.v"",;",, .... f SW l?il:lnn, :Inti ~hllil h" (I:lit1 , .... ,h,. A('t'{\llr'll:'lnl General. 5. (I) The Commission shall enquire into and determine the boundaries of the land affected by any concession, and shall where necessary cause beacons to be erected clearly indicating the bounds determined as aforesaid, and shall cause further surveys to be made and diagrams 10 be framed in accorclanc<i> with such beacons, aud in gene,al sh:dl cause­ everything to be done which may be necessary or advisable to put an end to all uncertainty and confusion as regards the situation, extent and boundaries of any land affected by any such concession. {l) When the rand anecrec by any such concession as aforesaid aojoms Mozambique territory, the boundary between such territory and Swaziland, when darnarcated, shall be the boundary of such land on the side adjoining such territory. 0) The Commission shall furth ..r enquire inlo ann rl,."jr!,. Ih,. ,."Ipnl In whi"h ~ny concession the boundaries of which have been determined under sub-section (1) of this section is registrable (if at all) as a servitude or lease against any other concession the boundaries of which have been similarly determined, and Shill! cause a copy of such decision to be transmitted to the Registrar of Deeds, who shall upon receipt thereof cause the necessary onlrill~ to btl mcdc in hb rcg-btcr:>, end cndoracmcnta to be <'!'Illde 0<'1 the officIO ¢OP;IO~ ",­ duplicates of the title deeds of any concession affected thereby, and also en such original title deeds or copies thereof as may be lodged with him. (4) In any case where it shall appear to the Commission that two or more concessions confirmed by the Chief Court affect the same land, either in whole or in part, or otherwise conflict, or are inconsistent one with another, the Commission shall have power notwith­ standing anything contained in section 9 to determine the nature, extent and validity of the rights of the respective holders of such concessions. Staying actions. 6 Aft..r th.. fir<t day of October, 1904, no action shatl be ma'ntainabl.. in any Cou,1 of Law involving a dispute as 10any matter which under this Part is to be determined by the Commission. Establishment of towns, etc. 7. It shall be lawful for the Minister to expropriate, subject to the provisions of the law in force dealing with the compulsory expropriation of land, so much of any land as may 6 LA:-JD: ACT 3/1904 s5.7"11 be required for the establishment or extension of any town or village, and for a commonage in connection therewith. Compensaticn for any rights injuriously affected by such expro­ priation shall be determined, in the absence of any agreement, by manner prescribed by the said law. Registers to be kept by the Minister. s. The Minister shall keep rcgioters of all conccssiona confirmed by the Chid Court, and of all leases, cessions, hypothecations or other encumbrances thereon, as well as of all general powers of attorney, notarial bonds and contracts with respect to persons and pro­ perty in Swaziland which have been registered by the Registrar of Deeds in his special registers for Swaziland. and shall make the necessary entries in such registers in accordance with returns furnished him frum time to rune by the Registrar of Deeds, anu shall upon payment of the fees prescribed by the Deeds Office Regulations supply the public with any information contained in such registers. Priority of concessions. 9. Subject to the provisions of section 5(4), and to any decision of the Commission thereunder, a concession of prior date not revoked by the grantor shall, if the condirions thereof hn....c been fulfilled, or if in the opinion of the Comrruasion there is II reasonable excuse for the non-performance of such conditions, have preference over a concession of later date. Where a written concession purports to confirm a prior verbal grant, the date of such verbal grant shall be taken to be the date of the concession, unless such grant is disputed by the holder of a conflicting concession, in which case it shall be lawful for the Commission 10 decide such dtspute, PART III UNCONFIRMED CONCESSIONS Definition. 10, In this Part, the term "unconfirmed concession" shall mean a concession or grant made by or on behalf of the then King or Paramount Chief of Swaziland, which was not confirmed by the late Chief Court of Swaziland, or a portion 0 f any such concession which was not so confirmed. Confirmation. II. (I) The Minister may, upon the recommendation of the Commission confirm, with or without modification, all or any of the rights granted by any unconfirmed concession which was duly registered in the Deeds Office prior to the eleventh day of October, 1899, 7 STATUTES O~ SWAZILANO ss.11-13 ami which would, if it had been connrmec by the late Ctuef Court, be a land concession or a mineral concession as defined in section 1 of the Concessions Partition Act, or a portion of such concession, and may attach conditions to such confirmation. (2) The confirmation of any riC'ht~ I1nrlpr thi~ ~p('rinn (h:111. fM th~ rmpO~l!~ of P:l.rt II of this Act and the Concessions Partition Act, and for all other purposes, be deemed to be equivalent 10 confirmation by the late Chief Court. save that any rights so confirmed shall rank as though the concession under which they were granted were of subsequent date to any concession confirmed by the late Chief Court in respect of the area affected by such rights. ~nri ,h.. pro"i~ion, of th.. Gaid Aot and Part II "hall "pply Ilccordingly. (3) Any decision of the Commission given, or purporting to have been given, under the provisions of section 5 of this Act with respect to the area of an unconfirmed concession shall mutatis mutandis apply to any rights granted under such concession as confirmed by rtie Mlnlster under this section, notwimstandmg such decision was given before the date of such confirmation. concettanon oj ngnts: 12. Any rights held under an unconfirmed concession which have not been contirrned by the British High Commissioner prior to the twentieth day of April, 1909, shall be deemed to he null and void. PART IV CONCESSIONS RENTALS To provide for the better collection and recovery of rents payable 10 the Swaziland Government in accordance with tire terms nf any rrmrps.•i"" Interpretation. 13. In this Part. unless inconsistent with the context "Concession" shall mean any grant of land or the use thereof for agricultural, mining or grazing purposes, or any grant of minerals or mineral products or timber made by or on behalf of the King or Paramount Chief of Swaziland, and confirmed either by the late Chief Court of Swaziland or by the High Cornrnisciooer under Part III of thi~ Act; "concession rentals" shall mean and include any rent or other consideration payable to the Swaziland Government in accordance with the terms of any concession, or in accordance with the terms of any grant of freehold title made under section 4 of fhl" rnn('p~dnn~ P"rf;llQn Ar:t, or under-a deed of transfer of such grant, but shall not include any moneys so payable by way of royalty, nor any bonus or rental payable under the terms of any mineral concession and becoming due only upon the happening of some event which has not occurred prior to the taking effect of this Part; 8 LAND: A(;T 3/19W 5s.13-16 "concessionaire" shull mean in relation to a concessio n or to any land held under grant of a freehold title made under section 4 of the Concessions Partition Act, or a deed of transfer of such grant, the person in whose name such concession or the freehold title to such land is registered, or in cases whete such person is insolvent or dead tho person in whom the administra­ tionof such concession or land is vested as trustee, executor or otherwise. Payment of rentals. 14. All concession rentals shall be paid by the concessionaires in advance to the Swazi ­ land Government on or before the first day of January of the year in which they become due, Summary recovery 0/ rentals. l~. If any concessionaire shall have failed to t h1Y Ull U1 befur e lilt; fll~t ll",y uf JUilU"'1 y in any year the concession rental payable by him on or before such date, under the preceding section, the Swaziland Government may cause a demand in writing to be made upon such concessionaire to pay the amount stated in such demand within fourteen days or such longer period as may be deemed fit after service thereof: Provided that if the address of the concessionaire or his legal representative is unknown, then such demand shall be made by Notice published in two successive issues of the Gazette and in a newspaper circulating in Swaziland. Where any concessionaire to or in respect of whom such derna",,! h,,~ h.... n nr fluhl;,ht'd :IS herein provided shall f:.lil to make payment of the rental due from him, together with the interest prescribed in section 17, within the time specified in the demand, the Government may apply to the High Court of Swaziland or the Magistrate's court having jurisdiction in the district in which the land in respect of which the rental is payable is situate, for a summary warrant to recover such rental together with the interest thereon from ehc conccaaionuire liublc to po.y the 511mc, o.nJ rnuy include in one such application rentals recoverable from different concessionaires. The said Courts shall grant such warrant on producrion of a list of the names and addresses of the concessionaires so in default and the amounts together with interest as by this Part provided respectively due by them, together with a certificate by the Minister that they have been severalty required to make payment of the said rentals by notice aforesaid and tnut such rentals are due by them, and every such warrant shall contain every authority and be executed. in all respects as though it were a writ of execution issued out of the said courts. Jurisdiction of Magistrate 's courts. 16, Notwithstanding the provisions of the last preceding section, the Swaziland Govern­ ment may at ltS discretion recover from any concessionaire in oerauu (witnout nonce or demand) the amount of the concession rental and the interest thereon due by such concession­ aire, irrespective of the amount thereof, by action in the Magistrate's court of the first class 9 STATUTES OF SWAZILAND ss.16·19 bts. having jurisdiction in the district in which the land in respect of whirh th.. r..nr.~l is p<ly::.bl.. is situate, whether the concessionaire liable for the same shall be resident within the juris­ diction of such Court or not. In case it shall not be possible to effect service of the summons within the jurisdiction of such court as aforesaid, then such service shall be effected in such manner as the said court shall direct. Interest. 17. In case any concession rental which becomes due shall remain unpaid after the date on which the same is required to be paid under section 14 interest upon the same shall be chargeable and recoverable by the Swaziland Government at the rate of one-half per cent for everY month or portion of a month for whirh th", r.. or,,1 r..m"in~ unp"id, r ..cl<:one d from the date aforesaid. Requirement on disposition of land or concession. 18. No cession, lease, sub-lease or other disposition of, or mortgage or other encum­ brance upon, any concession or anv land held otherwise than under a cnnc.,.<;,inn ,hal! hI' registered by the Registrar of Deeds until a receipt or certificate signed by the Minister or other person authorised by him shall be produced to the Registrar of Deeds showing that all concession rentals due in respect thereof with interest, if any, chargeable thereon have been paid, or that no such rentals are payable in respect thereof. iHerging of rig/us. 19. The liability to pay rent to the Swaziland Government under J. concession shall not be or be held to have been extinguished by reason of the fact that such concession and any other concession or any freehold grant affecting the same area or any portion of the same area hereafter become vested, or before the sixth day of February. 1909, had vested, in the same person. Concession rental 10 accrue to Ngwenyama in trust for the Swazi nauon. 19. his. Notwithstanding anything in this Chapter, any concession rental payable in respect of any concession relating to any grant of land or the use thereof for mining pur­ po~c~ OJ;" to llny srAut of mi"e,a.b UI ,ujuta<ll~ lJLUl1W':LS auu any nneresr uue on such concession rental shall accrue to the Ngwenyama in trust for the Swazi nation. (Amended A.14{1972) 10 LAND: ACT 3/1904 55.20-23 . ------ ~- .. ---- - -- .. PART V BURDENS ON LAND To regulate rights of way, and other servitudes, over land subject 10 a land concession. 20. All land the subject of a land concession, whether demarcated for the use and occupation of the Swazi people under section 2 of the Concessions Partiticn Act, or whether the same be free from use and occupation by the Swazi people, shall be subject to any rights of W:lY and outspnn, and to any rigbt3 to take water, wood 01 1'=::1.1> which lliJ.ve been awarded by the Special Commissioner in respect of such land in his Report dated the fifth day of December, 1908, or which may hereafter be awarded by him in respect of such lane, provided always that in the case of any appeal to the Minister against any a-vard by the Special Com­ missioner of such rights, the same shall take effect subject to and in accordance with the u=biuH uf tile rvttntsrer on such appeal, All such land shall further be subject to such rights of way and outspan as have been or may hereafter from time to time be by law establish­ ed. Outspans Of! Swazi areas. 21. Where any right of outspan exists, or is established under the preceding section, or under any other law, in respect of land demarcated for tile use and occup.uions of 'S\\ali~ under section 2 of the Concessions i'artition Act, the Minister may by Notice in the Gazette define the boundaries of such outspan, and the land included within such boundaries shall be under the control of the Minister. Stores and hotels 011 outspans. 21. The Minister may, and on such terms as he may approve, permit the establishment of Q wayaidc store or hotel, or the couriuuunce uf an existins store or hotei, upon a portion of the site of any such outspan which has been defined under the preceding section, in cases where it shall appear that the existence of a store or hotel on such ourspan is for the public convenience. Saving. 23, Nothing in this Part contained shall be taken to affect the operation of any laws Cur the linn: being in Iorce with respect to the grant 01 trading and liquor licences, (Part VII repealed by P.72/1 961.) The Government Printer, Mbabane. 11