Fencing Proclamation, 1921
Proclamation 57 of 1921
- Published in Official Gazette 78 on 1 February 1922
- Assented to on 1 December 1921
- Commenced on 1 February 1922
- [This is the version of this document from 21 June 1965 and includes any amendments published up to 1 December 2023.]
- [Amended by Fencing Proclamation Amendment Proclamation, 1923 (Proclamation 13 of 1923) on 1 June 1923]
- [Amended by Fencing Proclamation Amendment Proclamation, 1925 (Proclamation 18 of 1925) on 15 October 1925]
- [Amended by Fencing Proclamation Further Amendment Proclamation, 1925 (Proclamation 28 of 1925) on 1 December 1925]
- [Amended by Fencing Law Amendment Ordinance, 1928 (Ordinance 4 of 1928) on 1 July 1928]
- [Amended by Land Bank Proclamation, 1935 (Proclamation 22 of 1935) on 26 October 1935]
- [Amended by Fencing Proclamation Amendment Proclamation, 1950 (Proclamation 14 of 1950) on 15 April 1950]
- [Amended by Fencing Amendment Proclamation, 1950 (Proclamation 48 of 1950) on 15 September 1950]
- [Amended by Fencing Amendment Ordinance, 1952 (Ordinance 44 of 1952) on 5 December 1952]
- [Amended by Fencing Proclamation Amendment Ordinance, 1955 (Ordinance 21 of 1955) on 8 July 1955]
- [Amended by Fencing Proclamation Amendment Ordinance, 1957 (Ordinance 6 of 1957) on 11 April 1957]
- [Amended by Fencing Proclamation Amendment Ordinance, 1958 (Ordinance 6 of 1958) on 11 April 1957]
- [Amended by Animal Diseases and Parasites Ordinance, 1958 (Ordinance 14 of 1958) on 9 August 1958]
- [Amended by Animal Diseases and Parasites Ordinance, 1959 (Ordinance 34 of 1959) on 9 August 1958]
- [Amended by Fencing Proclamation Amendment Ordinance, 1963 (Ordinance 23 of 1963) on 4 July 1963]
- [Amended by Fencing Proclamation Amendment Ordinance, 1965 (Ordinance 26 of 1965) on 21 June 1965]
1.So much of any law as is repugnant to or inconsistent with the provisions of this Proclamation shall be and is hereby repealed: Provided that when an owner of a holding adjoining such an area applies to have such holding included in the area, the Administrator may amend the aforesaid notice so as to include the holding of such owner within the boundaries of the area.[Section 1 is amended by Ord. 6 of 1958 to add the proviso; a colon has accordingly been inserted.]
2.In this Proclamation unless inconsistent with the context:-“contributions” shall mean contributions by an owner in accordance with this Proclamation, towards the cost of dividing fences, and “contribute” shall be construed accordingly;“cost” shall, in respect of the erection or alteration or repair of any fence, include any cost of or incidental to such erection, alteration, or repair, including the cost of transport of materials:“department” shall mean the Administration of South-West Africa acting through any officer delegated thereto by the Administrator;“dividing fence” shall mean, in relation to a holding, a fence erected on or as near as possible to any boundary thereof and separating that holding from another holding, including any necessary gate in such fence and having not less than five strands of well galvanized wire, with straining-posts not more than 500 yards apart, and iron standards (these shall weigh not less than 12 pounds avoirdupois each) or hard-wood poles (these shall be at least 4 inches in diameter at the thin end and be planted not less than 2 feet deep in the ground) at not more than 10, 15, or 20 yards apart, with not less than two, three or four droppers (if hard-wood droppers are used these shall be at least 1½ inches in diameter at the thin end) between them respectively;[definition of “dividing fence” amended by Proc. 18 of 1925, Proc. 28 of 1925 and Proc. 14 of 1950]“holding” shall mean -
DIVIDING FENCES, ADVANCES FOR ERECTION THEREOF AND CONTRIBUTIONS TOWARDS COST OF ERECTION
3.[section 3 amended by Proc. 13 of 1923 and repealed by Act 22 of 1935]
4.If any owner has, under this Proclamation or another law or otherwise, lawfully erected a dividing fence on the boundary lines of his holding in an area in which contributions towards the cost thereof are not obligatory and the owner of an adjoining holding adopts means whereby such a fence is rendered of beneficial use to himself either owner may, in default of agreement, demand that an assessment be made of the value to each owner of the fence, regard being had to the extent to which and the time at which the beneficial use is being or has been made. Such value shall be determined as a dispute in accordance with the provisions of the Second Schedule to this Proclamation, and thereupon it shall be obligatory upon the owner who has made beneficial use of the fence to contribute towards the cost of such fence in accordance with such assessment.
7.If the whereabouts of any owner be unknown or if he be absent from the Territory of South-West Africa, the notice mentioned in the last preceding section shall be deemed to be duly given -
8.Whenever a holding in an area in respect of which a notice is in force under section five adjoins a holding situated in another area in respect of which such a notice is not in force, the owner of the last-mentioned holding shall be liable to contribute towards the cost of the dividing fence between the two holdings, only if he adopts means whereby the fence is rendered of beneficial use to himself.
Chapter 2[Chapter 2, comprising sections 9-17, deleted by Ord. 14 of 1958 and by Ord. 34 of 1959]
18.Any person who -
19.Any person who climbs over or through a fence or gate without permission of the owner or lessee of the land upon which such fence is situate shall be liable on conviction to a fine not exceeding ten pounds, or in default of payment, to imprisonment for a period not exceeding fourteen days.[A fine not exceeding ten pounds is equivalent to a fine not exceeding N$20.]
20.Any person who wilfully injures or removes any fence, gate, or other appliance or contrivance forming part or serving the purpose thereof, shall be liable on conviction to a fine not exceeding seventy-five pounds, or, in default of payment, to imprisonment for a period not exceeding six months or to such imprisonment without the option of a fine.[A fine not exceeding seventy-five pounds is equivalent to a fine not exceeding N$150.]
22.Any person who, having injured a fence or gate, or having climbed over of through a fence or gate without permission, fails, on request by the owner or lessee of the land on which it is situate or by some person authorised thereto by such owner or lessee, to give his correct name and address, shall be liable on conviction to a fine not exceeding twenty pounds, or, in default of payment, to imprisonment for a period not exceeding one month.[A fine not exceeding twenty pounds is equivalent to a fine not exceeding N$40.]
23.Any person who wilfully fails to comply with, or who contravenes any provision of this Proclamation in respect whereof no penalty is expressly provided shall be liable on conviction to a fine not exceeding twenty pounds or, in default of payment, to imprisonment for a period not exceeding one month.[A fine not exceeding twenty pounds is equivalent to a fine not exceeding N$40.]
GENERAL AND MISCELLANEOUS
25.Whenever, under this Proclamation, two owners are unable to agree -
27.If any fence crosses a recognised public road the owner concerned shall allow an opening of not less than fifteen feet across such road and shall erect and maintain in good order a gate made of iron or wood, or an iron or wooden frame spanned with wire, placed as near as possible at right angles to the road and properly fixed by means of hinges or pivots to the posts erected for the purpose, so as to facilitate the opening and closing of the gate:Provided that in an area wherein a road authority exists such authority shall define the types and width of gates which may be erected over any road:Provided further that nothing in this section contained shall apply in any area wherein any road authority lawfully prohibits the erection of gates across recognised public roads.
28.Whenever under this Proclamation it is necessary to determine in respect of the fencing of public outspans the ownership thereof, the owner shall -
29.Any person erecting any fence whatever on land covered with bush may clear the bush for a distance not exceeding five feet on each side of such fence and may remove any tree standing in the immediate line of such fence, and the cost of such clearing shall be deemed to be part of the cost of erecting the fence.
30.Where any holding fenced under this Proclamation is held under lease the owner shall be entitled during the term of the lease to receive from the lessee, as from the date when such holding become so fenced, a payment of six per cent per annum on any sum which such owner has paid in respect of the fence. The owner shall have the same rights in respect of recovering any such payment as he has in law to recover rent due to him from the lessee, and the lessee shall have the right to determine the lease, unless the owner’s liability to contribute towards the cost of the fence arose from any act of the lessee.
32.If any dividing fence whatever be out of repair the owner of each holding separated by the fence shall be liable for the cost of the repair to the extent to which under this Proclamation he would be liable to contribute to the cost of such fence; and either owner may serve upon the other owner a notice requiring him within a period of one week to assist in repairing such fence; and if such other owner fail to comply with the terms of such notice the owner who has served the said notice may himself repair it and recover from the other owner the proportion of the cost of repair due from him.
33.Any owner of a holding separated by a dividing fence shall have the right at any time so to alter the fence as to make it a fence of a superior type: Provided that the owner of the adjoining holding separated by the fence shall not be liable to contribute to the alteration unless or until he derives beneficial use from the type of fence as altered. The provisions of the next succeeding section shall apply mutatis mutandis as if the alteration were an erection or repair of the fence.
34.Any person erecting or repairing any dividing fence whatever, whether erected under this Proclamation or otherwise, shall for himself, his servants, implements, materials, animals and vehicles have at all times access to any property for the purpose of carrying out the work reasonably required for the erection or repair:Provided that nothing in this section contained shall be construed as authorising the entry, without the consent of the occupant, upon land under cultivation or on a garden, plantation, or pleasure ground, or the cutting down, lopping, or injury of any fruit tree, ornamental trees, or shrubs.
34bis.If the owner of a holding erects jackalproof fencing he shall be entitled to fold the lower six inches of the fencing over on his neighbour's side and to pack it down with stones, to obtain the material needed for the folding over and packing down from his neighbour's land, and to convey such material by means of a vehicle.[section 34bis inserted by Ord. 21 of 1955]
35.For the purpose of inspection, valuation, or survey, or of carrying out any of the provisions of this Proclamation, any person authorised by the department or any person appointed or nominated to determine a dispute in accordance with the Second Schedule to this Proclamation may enter upon any land and value, measure, survey, take grades and levels, fell trees, cut fences, and do all other acts necessary, for such purposes:Provided that all damage caused by the exercise of the powers of this section shall, as far as possible, be repaired, and so far as the repair of damage is not possible the value thereof shall be paid to the owner, and shall, in default of agreement, be determined as a dispute in accordance with the provisions of the said Second Schedule.
36.If any fence erected, or to be erected, on land over which a telegraph line is constructed, render or would render it impossible or inconvenient for the Director of Posts and Telegraphs to obtain access to that land for the purpose of carrying out any of the functions of the Branch controlled by him, the said Director may, at the expense of the said Branch, erect and maintain gates in that fence and shall provide therefor duplicate keys, one of which shall be handed over to the owner or occupier of the land. It shall be the duty of every person intending to erect any such fence to give six weeks’ notice in writing to the Director of Posts and Telegraphs of his intention.[A new section 36 is inserted by Proc. 18 of 1925, with the original section 36 and all subsequent sections re-numbered accordingly.]
37.If any civil proceedings be taken under this Proclamation against a lessee for which the owner would ultimately incur any liability, the lessor may intervene and defend such proceedings, and any defence which is available to the lessee shall be available to the owner in addition to any other available defence.The magistrate’s court of the district in which the defendant in any civil proceedings under this Proclamation resides shall have jurisdiction to entertain such proceedings and give judgment for the amount claimed, notwithstanding that the proceedings or amount claimed is under the law relating to magistrates’ courts, outside the ordinary jurisdiction of such courts.
39.No owner or occupier of a holding shall be held liable in damages in respect of an injury caused to any person or to any property by such person or property coming in contact with any fence: Provided that the injury has not been occasioned by the negligence of such owner or occupier in erecting, altering, maintaining or repairing the fence.
40.Nothing in this Proclamation contained shall be construed as affecting any act done or right acquired prior to the commencement of this Proclamation under any contract, covenant, or agreement made between any lessor and lessee, or between the owners of adjoining holdings relative to dividing fences.
41.No right conferred nor any obligation or duty imposed by this Proclamation on an owner or lessee shall, if the Administration of South-West Africa or the Railway Administration, (by which expression is meant the authority for the control and management of the railways, ports and harbours of the Union of South Africa as established under the South Africa Act 1909 of the Union Parliament or any amendment thereof) be the owner or lessee of a holding, whether by registration or otherwise, belong to or be binding upon them respectively.
42.This Proclamation may be cited for all purposes as the “Fencing Proclamation 1921”, and shall come into operation on a date to be fixed by the Administrator by notice in the Gazette.GOD SAVE THE KING.Given under my hand and seal at Swakopmund this 1st day of December, 1921.GIJS. R. HOFMEYR,Administrator.
History of this document
21 June 1965 this version
04 July 1963
08 July 1955
05 December 1952
Amended by Fencing Amendment Ordinance, 1952
15 September 1950
Amended by Fencing Amendment Proclamation, 1950
15 April 1950
26 October 1935
Amended by Land Bank Proclamation, 1935
01 July 1928
Amended by Fencing Law Amendment Ordinance, 1928
01 December 1925
15 October 1925
01 June 1923
01 February 1922
01 December 1921