Traditional Courts Act
- There are multiple commencements:
- [This is the version of this document at 31 December 2014.]
- [Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]
|Section 25–26, section 40||
commenced on 15 June 1962.
Note: See G.N. 88/1962.
|Section 1–24, section 27–38, section 39||
commenced on 1 August 1962.
Note: See G.N. 108/1962.
|Section 38A–38B||commenced on (unknown date).|
1. Short titleThis Act may be cited as the Traditional Courts Act.
2. InterpretationIn this Act, unless the context otherwise requires—“African” means—(a)any member of an indigenous race of Africa; and(b)any person who resides in Malawi as a member of such race;“Chief Traditional Courts Commissioner” means the Chief Traditional Courts Commissioner appointed under section 25, and includes the Senior Traditional Courts Commissioner and a Traditional Courts Commissioner acting within any area assigned to him under that section;“Traditional Court” means a court established under this Act;“member” means a member of a Traditional Court, and includes a Chairman of such court.
3. Establishment of Traditional Courts
4. Constitution and membership of Traditional Courts
5. Suspension and dismissal of membersSubject to this Act and any rules made thereunder, the Minister may dismiss or may suspend for such time as he thinks fit any member of a Traditional Court who shall appear to have abused his power, or to be unworthy or incapable of exercising the same justly, or for other sufficient reason, and notice of such suspension or dismissal shall be published in the Gazette. Upon such dismissal or for the period of his suspension, the member shall be disqualified from using any powers or jurisdiction as a member of the court.
6. Court staff
7. SessionsA Traditional Court shall hold sessions at such times and places as may be necessary for the convenient and speedy despatch of the business of the court:Provided that the Minister may direct sessions to be held at such times and places as he shall think fit.
8. Civil jurisdiction of Traditional CourtsSubject to this Act, every Traditional Court shall have and may exercise civil jurisdiction to the extent set out in its warrant, over causes and matters in which all the parties are Africans and the defendant was, at the time when the cause of action arose, resident or being within the jurisdiction of the court:Provided that notwithstanding anything contained in this or any other Act, such jurisdiction shall, within the limits specified in the warrant of the court concerned, extend to the hearing and determination of suits for the recovery of civil debts due to the Government, to any local authority or to the office of any Chief under any law:Provided further that civil proceedings relating to immoveable property shall be taken in the Traditional Court within the area of whose jurisdiction the property is situated.
9. Criminal jurisdiction of Traditional CourtsSubject to this Act, every Traditional Court shall have and may exercise criminal jurisdiction to the extent set out in its warrant. Such jurisdiction shall extend to the hearing, trial and determination of all criminal charges and matters in which the defendant is an African and is accused of having, wholly or in part within the jurisdiction of the court, committed or been accessory to the committing of an offence.
10. Extension of jurisdictionNotwithstanding any other provision of this Act, the Minister may, by order published in the Gazette, direct that the jurisdiction of any Traditional Court, either civil or criminal or both, shall extend to the hearing of causes and matters in which any or all of the parties are non-Africans:Provided that in respect of any cause or matter involving an issue to be determined by customary law, any jurisdiction conferred under this section shall extend to the determination of such cause or matter only where it is shown that every non-African who is a party has voluntarily assumed a right, liability or relationship which is the subject matter of the dispute and which would have been governed by the customary law concerned if all the parties had been Africans.
11. Cases excluded from the ordinary jurisdiction of a Traditional CourtSubject to any express provision conferring jurisdiction, no Traditional Court shall have jurisdiction in—
12. Law to be administeredSubject to this Act, a Traditional Court shall administer—
13. Power of Minister to empower a Traditional Court to enforce specified lawsThe Minister may, by order published in the Gazette, confer upon all or any Traditional Courts jurisdiction to enforce all or any of the provisions of any law specified in such order, subject to such restrictions and limitations, if any, as the Minister may specify.
14. Orders in cases of a criminal nature
15. Suspension of sentence
16. Compensation to injured or aggrieved persons
17. Awards in cases of a civil nature
18. Places of imprisonmentEvery person sentenced by a Traditional Court to imprisonment or taken in the execution of the process of such court shall be detained in a place authorized by the Minister as a prison for the purposes of this Act.
19. Contempt of courtAny person subject to the jurisdiction of a Traditional Court who, without lawful excuse—
20. Wilful refusal to pay compensationAny person subject to the jurisdiction of a Traditional Court who without lawful excuse and having the means to pay any compensation awarded against him refuses or wilfully fails to make such payment after due notice shall be liable to a fine of £20 and to imprisonment for six months.
21. Power to summon witnesses
22. Provision for summoning witnesses, etc., outside the area of jurisdictionThe Minister may by order confer upon any Traditional Court such powers as he may think necessary to secure the appearance before any such court of any person outside the area of the jurisdiction of such court when the appearance of any such person shall be required as a defendant or witness in any proceedings within the jurisdiction of such court.
23. Practice and procedureThe practice and procedure of Traditional Courts shall be regulated in accordance with such rules as may be made in that behalf by the Minister under section 40.
24. Representation of parties
25. Appointment of Chief Traditional Courts Commissioner and other officers
26. Functions of Chief Traditional Courts Commissioner
27. Adjudication without authorityAny person who shall exercise or attempt to exercise judicial powers within the area of the jurisdiction of a duly constituted Traditional Court, except in accordance with any Act, or who shall sit as a member of such court without due authority, shall be liable, on conviction before the High Court or before a court of a Resident Magistrate or a magistrate of the first or second grade, to a fine of £50 and to imprisonment for twelve months.
28. Members of Traditional Courts taking rewardsWhoever, being or expecting to be a member of a Traditional Court, accepts or obtains or agrees to accept, or attempts to obtain from any person for himself or for any other person, any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any act as a member of such court, or for showing, as a member of such court, favour or disfavour to any person, shall be liable to a fine of £100 and to imprisonment for two years.
29. Taking reward for influencing courtsWhoever accepts or obtains, or agrees to accept, or attempts to obtain from any person for himself or for any other person, any gratification or reward whatever whether in money or otherwise, for inducing by corrupt or illegal means, or by personal influence, any Traditional Court, or any member thereof, to do or forbear to do any act which such court or member is authorized to do in the exercise of lawful jurisdiction, or to show favour or disfavour to any person, shall be liable to a fine of £100 and to imprisonment for two years.
30. Penalty for false evidenceWhoever in any proceeding before a Traditional Court gives evidence, whether upon oath or otherwise, which he knows to be false, or believes to be false, or does not believe to be true, shall be liable to a fine of £100 and to imprisonment for two years.
31. Proceedings on transferWhen a case is transferred from a Traditional Court to a subordinate court, whether for trial or retrial, by an order under section 32, the Traditional Court shall report the proceedings to the subordinate court, and thereupon the subordinate court shall proceed to the trial or retrial of the case as though, in a criminal proceeding, a complaint of acts constituting the offence had been made to the court and, in a civil proceeding, as though a plaint herein had been filed in the court.
32. Powers of Chief Traditional Courts Commissioner to order retrial or transfer of cases
33. Traditional Appeal Courts
35. Power on appealA Traditional Appeal Court in exercise of appellate jurisdiction in any cause or matter under this Act may require the aid of such persons as assessors as the court shall think fit, and may—
36. Substantial justice to be done without undue regard to technicalitiesNo proceedings in a Traditional Court and no summons, warrant, process, order or decree issued or made thereby shall be varied or declared void upon appeal or under section 32 solely by reason of any defect in procedure or want of form, and every court exercising appellate powers under this Act, or the Chief Traditional Courts Commissioner, as the case may be, shall decide all matters according to substantial justice without undue regard to technicalities.
37. Execution of orders of High Court, subordinate courts or other Traditional CourtsA Traditional Court shall carry into execution any decrees or orders of the High Court or of any subordinate court or of any other Traditional Court directed to the court, and shall execute all warrants, and serve all process issued by any such courts and directed to the court for execution or service and shall generally give such assistance to any such courts as may be required.
38. Powers of remand in criminal cases
38A. Effect of non-attendance of memberWhere a Traditional Court, or a Traditional Appeal Court, consists of more than one member and, because of death, illness or some other reason one, but not more than one, member is unable to be present continuously throughout a case, it shall be lawful for the case to be continued as if all the members were present and any judgment given by the remaining members shall be of the same validity as if it had been given by the Court consisting of its full number of members.[38 of 1970]
38B. Alternate members
39. Indemnity of officers acting judicially and of officers executing warrants and ordersNo person shall be liable to be sued in any court for any act done or ordered to be done by him in the exercise of jurisdiction conferred by this Act, whether or not within the limits of his jurisdiction, if at the time of such act or order he believed in good faith that he had jurisdiction to do such act or to make such order; and no officer of any Traditional Court or other person bound to execute lawful warrants or orders issued or made in the exercise of jurisdiction conferred by this Act shall be liable to be sued in any court for the execution of any warrant or order which he would be bound to execute, if the person issuing the same had been acting in the exercise of lawful authority.
History of this document
01 August 1962