Control of Tobacco Auction Floors Act
This section gives the Act its short title: the Control of Tobacco Auction Floors Act.
- Jurisdiction
- Malawi
- Instrument
- Act or statute
- Citation
- Act 43 of 1970
- Version
- 31 Dec 2014
- Language
- en
- Official source
- View official record ↗
Statute overview
About this statute
This section gives the Act its short title: the Control of Tobacco Auction Floors Act. This section defines key terms used in the Act, including licence types, the Commission, a grader, a registered seller, and tobacco. This section creates the Tobacco Control Commission as a body corporate and gives it corporate powers, while making it subject to the Minister’s general or special directions when carrying out its powers and duties. The Minister appoints the Commission’s members, and appointed members serve at the Minister’s pleasure, retire annually, and may resign in writing. The Commission must meet at least twice a year, and the Chairman can direct other meeting times.
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Provisions of Control of Tobacco Auction Floors Act
Showing 38 of 38
Part I
Preliminary
- 1 Verify source ↗
Short title
This section gives the Act its short title: the Control of Tobacco Auction Floors Act.
1. Short title This Act may be cited as the Control of Tobacco Auction Floors Act. - 2 Verify source ↗
Interpretation
This section defines key terms used in the Act, including licence types, the Commission, a grader, a registered seller, and tobacco.
2. Interpretation In this Act, unless the context otherwise requires— “ auction floor buyer’s licence ” means a licence to buy tobacco on the auction floors granted under section 21 ; “ auction floor licence ” means a licence granted under section 18 ; “ commercial grading of tobacco ” means the grading of tobacco by a grader ; “ Commission ” means the Tobacco Control Commission established under section 3 ; “ grader ” means a person who carries on the business of grading tobacco for profit or gain but does not include a grower or buyer of tobacco who grades his own tobacco or any employee or servant of such a grower or buyer; “ registered seller ” means a seller who is registered under section 23 ; “ tobacco ” means un-manufactured tobacco, whether cured or uncured but does not include “nicotiana rustica” or oriental. [9 of 1986]
Part II
Tobacco Control Commission
- 3 Verify source ↗
Tobacco Control Commission
This section creates the Tobacco Control Commission as a body corporate and gives it corporate powers, while making it subject to the Minister’s general or special directions when carrying out its powers and duties.
3. Tobacco Control Commission (1) There shall be a Commission to be known as the Tobacco Control Commission which shall be a body corporate having perpetual succession a common seal and shall be capable of suing and being sued, and of purchasing and alienating land, and, subject to this Act, of performing all such acts and things as bodies corporate may by law perform. (2) The Commission shall, in the exercise of its powers and the performance of its duties, under this Act or any other written law, be subject to the general or special directions of the Minister. - 4 Verify source ↗
Composition of Commission
The Minister appoints the Commission’s members, and appointed members serve at the Minister’s pleasure, retire annually, and may resign in writing.
4. Composition of Commission (1) The Commission shall consist of the following members appointed by the Minister in his discretion— (a) a Chairman appointed by the Minister; (b) two members to represent the Agricultural Development and Marketing Corporation; (c) two members to represent the Tobacco Association; (d) two members to represent the Tobacco Exporters Association; (e) four members to represent tobacco farmers; (f) two members to represent the Government. (2) (a) The members appointed under subsection (1) shall hold office during the Minister’s pleasure and shall retire annually. (b) Any members retiring as aforesaid shall be eligible for reappointment. (3) Any member appointed under subsection (1) may resign by notice given in writing to the Minister, such resignation to take effect on the date specified in the notice, or 7 days after receipt of the notice by the Minister, whichever is the later. - 5 Verify source ↗
Meetings of Commission
The Commission must meet at least twice a year, and the Chairman can direct other meeting times.
5. Meetings of Commission (1) The Commission shall meet not less than twice in each year and at such other times as the Chairman shall direct. (2) Five members of the Commission shall constitute a quorum. In the absence of both the Chairman and his alternate, the members present shall elect a Chairman. (3) The Chairman of any meeting shall have a deliberative vote and, in the case of equality of votes, a casting vote. (4) The members of the Commission shall be paid out of the funds of the Commission any reasonable expenses incurred by them in connexion with the business of the Commission . - 6 Verify source ↗
Appointment of secretary and other officers
The Commission may appoint a secretary and other officers, and it may determine their remuneration from the Commission’s funds.
6. Appointment of secretary and other officers The Commission may appoint a secretary and such other officers as it may consider necessary for assisting in the proper execution of its duties and there shall be paid to such secretary or officers from the funds of the Commission such remuneration as the Commission may determine. - 7 Verify source ↗
Duties and powers of the Commission
The Commission must perform several tobacco-related duties and may exercise certain powers with the Minister’s approval.
7. Duties and powers of the Commission (1) It shall be the duty of the Commission — (a) to advise the Government on the sale and export of tobacco ; (b) to promote and expand the sale of tobacco ; (c) to collate statistics relating to tobacco ; (d) to distribute market studies and information relating to tobacco ; (e) to control and regulate the sale of tobacco on the auction floors in Malawi. (2) In addition to the other powers conferred upon it by this Act, the Commission shall, with the approval of the Minister, have power— (a) to acquire, lease or hire any property which it considers necessary for the purpose of exercising its functions; (b) to insure against losses, damages, risks and liabilities which it may incur; (c) to enter into contracts in connexion with the exercise of its functions or the performance of its duties; (d) to incur expenditure in the furtherance of any scheme for the better marketing of tobacco or for the development of external markets for tobacco . - 8 Verify source ↗
Protection of members of Commission
A Commission member is exempt from liability for suits, claims, or demands arising from good-faith acts or decisions made in the proper exercise of discretion.
8. Protection of members of Commission No member of the Commission shall be liable to any suit, claim or demand by reason of anything done in good faith or for any decision made in the rightful exercise of his discretion in his capacity as such member. - 9 Verify source ↗
Appeals from decisions of Commission
A person aggrieved by a Commission decision may appeal to the Minister, and the Minister’s decision is final.
9. Appeals from decisions of Commission Any person aggrieved by a decision of the Commission in the exercise of its functions or the performance of its duties under this Act may appeal to the Minister, whose decision thereon shall be final and shall not be questioned in any court.
Part III
Finances of Commission
- 10 Verify source ↗
Revenue of Commission
The Commission’s revenue includes charges it levies, fees/cesses/dues/rents it receives, and interest earned on invested money.
10. Revenue of Commission The revenue of the Commission shall include— (a) all charges levied by the Commission ; (b) all other fees, cesses, dues or rents received by the Commission ; and (c) the interest on money invested by the Commission . - 11 Verify source ↗
Section 11
The Commission must pay all money it receives into a bank registered under the Banking Act, unless the Minister permits otherwise.
11. Bank accounts Unless the Minister shall otherwise permit, all moneys received by the Commission shall be paid into a bank registered under the Banking Act and shall be credited to such of the Commission ’s accounts as may be appropriate. [Cap. 44:01] - 12 Verify source ↗
Investment of moneys by Commission
The Commission may invest its money in government securities, qualifying bank or building society deposits, or other approved investment methods.
12. Investment of moneys by Commission The Commission may invest all or any part of its moneys— (a) in the purchase of any security issued by the Government of Malawi; (b) in deposits in any bank or building society registered under the Banking Act or the Building Societies Act, as the case may be; or [Cap. 44:01] [Cap. 32:01] (c) in such other manner as may be approved by the Minister and the Minister for the time being responsible for finance. - 13 Verify source ↗
Expenses of Commission
The Commission’s expenses must be paid from the Commission’s funds, and it may create reserves with Minister approval.
13. Expenses of Commission (1) The expenses of the Commission incurred in the execution of the functions, duties and powers conferred upon it, or in the discharge of any of its liabilities, shall be defrayed out of the funds of the Commission . (2) The Commission may create such general and other reserves as may be approved by the Minister and may credit to such reserves such appropriations as may be authorized in the annual estimates of the Commission . - 14 Verify source ↗
Raising of loans by Commission
The Commission may raise loans, including bank overdrafts, if approved under the Finance and Audit Act and for carrying out this Act.
14. Raising of loans by Commission (1) It shall be lawful for the Commission from time to time to raise loans, whether by way of bank overdraft or otherwise, in such amounts and on such conditions as may be approved under the Finance and Audit Act, for the proper carrying out of this Act. [Cap. 37:01] (2) Such loans may be secured on the property and revenues of the Commission , including any lands which may be specifically placed at the disposal of the Commission under any law: Provided that this section shall not be deemed to confer any powers of alienating such lands other than such powers as may be conferred by any such law. - 15 Verify source ↗
Keeping of accounts
The Commission must keep true accounts of its financial transactions each year, may keep special accounts if needed, and must keep other accounts if the Minister directs. Commission accounts must be open to inspection by any Commission member.
15. Keeping of accounts (1) The Commission shall cause a true account to be kept of all its financial transactions during each financial year. (2) The Commission may keep such special accounts, including capital and renewals accounts, as it may consider necessary, and shall keep such further or other accounts as the Minister may from time to time direct. (3) All accounts of the Commission shall be open to inspection by any member of the Commission . - 16 Verify source ↗
Audit of Commission ’s accounts
The Commission’s accounts must be audited at the end of every financial year by an auditor approved by the Minister.
16. Audit of Commission ’s accounts The accounts of the Commission shall be audited at the end of every one of the Commission 's financial years by an auditor approved by the Minister. - 17 Verify source ↗
Financial year of Commission
The Minister may prescribe the Commission’s financial year, but only with approval from the Minister responsible for finance.
17. Financial year of Commission The financial year of the Commission shall be such as may be prescribed by the Minister with the approval of the Minister for the time being responsible for finance.
Part IV
Auction floor licences
- 18 Verify source ↗
Licensed auction floors
You must have a valid auction floor licence to use premises for tobacco auctions, and licence holders must follow Commission directions and keep charges within any tariff fixed by the Commission.
18. Licensed auction floors (1) No person shall use any premises for the sale of tobacco by auction unless he holds a valid auction floor licence in respect of such premises in the prescribed form granted by the Minister and licensing such premises as a licensed auction floor. (2) The grant to an applicant of an auction floor licence shall be made on payment of the prescribed fee, subject to the discretion of the Minister, bearing in mind the number of such licences which have already been granted in the year in respect of which the application for a licence is made. (3) Every auction floor licence shall, unless previously surrendered, revoked or suspended, be valid until the 31st day of December in the year in which it is granted. (4) The Commission may, from time to time, after prior consultation with the holders of auction floor licences, and with the approval of the Minister, fix a tariff of weighing, selling and commission charges, which tariff shall be published in the Gazette , and it shall be a condition of every auction floor licence that the licensee’s charges shall not exceed such tariff. (5) If the holder of an auction floor licence or his manager or any other person employed by him for conducting the sale of tobacco on the auction floor to which such licence relates— (a) fails to comply with, or contravenes, any condition to which the licence is subject; or (b) is convicted of an offence against this Act, the Minister may, in his discretion— (i) forthwith revoke such licence; or (ii) suspend such licence for such period as he may deem reasonable to enable appropriate investigations to be carried out, and thereafter revoke such licence or allow it to continue. (6) No part of the fee paid for such licence shall be refunded on the cancellation, revocation or suspension of such licence. (7) Any provision in any other Act which may require any person to hold a licence or permit to sell any article shall not apply to the holder of an auction floor licence or to his manager or to any other person employed by him for conducting the sale of tobacco on the licensed auction floor to which such licence relates in respect of the sale of such tobacco . (8) Every holder of an auction floor licence shall comply with all lawful directions of the Commission and shall render to the Commission the prescribed returns. (9) Whenever the Minister has reason to believe that sales on any auction floor are the subject of rigging or any other corrupt practice, or is otherwise satisfied that it is in the interests of fair trading so to do, he may order the holder of the auction floor licence concerned to suspend business on the auction floor until further notice. - 19 Verify source ↗
Minister may require holder of auction floor licence to give information
The Minister may require an auction floor licence holder to disclose tobacco-sales information and price details, and the Minister must treat that information as confidential except for prosecution of an alleged offence disclosed by the disclosure.
19. Minister may require holder of auction floor licence to give information (1) The Minister may require any holder of an auction floor licence to disclose to him the amount of tobacco sold by such holder, or by bis manager or other person employed by him, on behalf of any person, and the price for which such tobacco was sold, and any such holder who does not comply with such requirement or who, in complying with such request, knowingly or recklessly makes any false statement or gives any false information shall be guilty of an offence. (2) The Minister shall treat any information given to him by reason of a requirement made under subsection (1) as confidential: Provided that where, the exercise of the Minister’s powers under subsection (1) results in the disclosure of an alleged offence, such information may be used in the prosecution of such offence. - 20 Verify source ↗
Sale days and hours
The Commission may set the days or hours when tobacco can be sold on each licensed auction floor, and licence holders must follow those limits.
20. Sale days and hours (1) The Commission may from time to time appoint for each licensed auction floor days on which, or hours during which, tobacco of different type may be offered for sale, and it shall be a condition of every auction floor licence that tobacco may only be offered for sale on such days or during such hours. (2) Any appointment made by the Commission under subsection (1) shall— (a) be published by posting a copy, in a prominent position at the; licensed auction floor to which it applies and shall come into force upon the date of such publication; (b) be broadcast as a public announcement by the Malawi Broadcasting Corporation. - 21 Verify source ↗
Tobacco sold on auction floors to be graded
Tobacco may not be sold on a licensed auction floor unless it has been graded under regulations made under the Act.
21. Tobacco sold on auction floors to be graded No person shall sell tobacco on a licensed auction floor unless such tobacco has been graded in accordance, with regulations made under this Act. Any person who contravenes this section shall be guilty of an offence.
Part V
Auction floor buyer’s licence
- 22 Verify source ↗
Auction floor buyer’s licence
A person may buy tobacco on a licensed auction floor only if holding a valid auction floor buyer’s licence granted by the Minister.
22. Auction floor buyer’s licence (1) No person shall buy tobacco on a licensed auction floor unless he is the holder of a valid auction floor buyer s licence, in the prescribed form, granted by the Minister. (2) The grant of an auction floor buyer’s licence shall be at the discretion of the Minister and shall be subject to such conditions as the Minister may deem fit to impose. (3) There shall be paid on the grant of an auction floor buyer’s licence such fee as may be prescribed, and no part of such fee shall be repaid on the cancellation, revocation or suspension of such licence. (4) An auction floor buyer’s licence shall, unless previously surrendered, revoked or suspended, be valid until the 31st December of the year in which it is granted. (5) An auction floor buyer’s licence may be granted to a company or partnership, and in any such case such company or partnership shall register with the Commission the name of every person who is authorized to buy tobacco in Malawi on its behalf, and every person so registered by any such company or partnership shall be deemed to be the holder of an auction floor buyer’s licence . (6) If the holder of an auction floor buyer’s licence or any person who is deemed by virtue of subsection (5) to be the holder of such licence— (a) fails to comply with, or contravenes, any condition to which such licence is subject; (b) is convicted of an offence against this Act, the Minister may, in his discretion— (i) forthwith revoke such licence; or (ii) suspend such licence for such period us he may deem reasonable to enable appropriate investigations to be carried out, and thereafter revoke such licence or allow it to continue. (7) Where the holder of an auction floor buyer’s licence has been convicted of an offence against this Act and the court has ordered the cancellation of such licence, or where such licence has been revoked by the Minister, the Commission may refuse to register such holder as a person authorized to buy tobacco in Malawi on behalf of a company or partnership which holds an auction floor buyer’s licence . (8) Every company or partnership holding an auction floor buyer’s licence in accordance with subsection (5) shall render to the Commission the prescribed returns and shall comply with all lawful directions of the Commission . (9) Any person who contravenes subsection (1) or who, being the holder of an auction floor buyer’s licence , fails to comply with or contravenes any condition to which such licence is subject, shall be guilty of an offence.
Part VI
Registered sellers
- 23 Verify source ↗
Registration of tobacco sellers on the auction floors
Tobacco may be sold on an auction floor only by a seller registered by the Commission.
23. Registration of tobacco sellers on the auction floors (1) No person shall sell his tobacco on an auction floor unless he is registered as a seller by the Commission . (2) Application for registration shall be made at such time to such persons in such places and in such manner as may be prescribed and may be refused for such reasons as may be prescribed. (3) Any person who is aggrieved by the refusal of his application for registration may appeal to the Minister whose decision shall be final and shall not be questioned in any court. (4) Registers for the purposes of this section shall be kept at such places, by such persons and in such form as may be prescribed, and shall be open to inspection at all reasonable times by the Minister or by any person authorized by him in writing in that behalf. (5) Upon the registration of such registered sellers under this section, the person keeping the register shall issue to such seller a certificate of registration in such form and subject to such conditions as may be prescribed: Provided that such seller grows tobacco in accordance with Part 11 of the Tobacco Act within the scheduled areas declared under section 2 of the Tobacco Act. [Cap. 65:02]
Part VII
Tobacco graders and grades
- 24 Verify source ↗
Minister to define tobacco classes and grades
The Minister must define the classes and grades in which tobacco may be sold or bought.
24. Minister to define tobacco classes and grades (1) The Minister shall from time to time define the classes and grades in which tobacco may be sold or bought. (2) The classes and grades in which tobacco may be sold or bought shall be the same as those defined under section 11 of the Tobacco Act. - 25 Verify source ↗
No grading without prescribed licence
A person must not run a grader business without the prescribed licence, and the Minister must not license a grader to someone already licensed as an auction floor buyer until the subsection is brought into force by Gazette notice.
25. No grading without prescribed licence (1) No person shall carry on the business of a grader unless the Minister has issued to him such licence as may be prescribed. (2) The Minister shall not license as a grader any person who is licensed as an auction floor buyer: Provided that this subsection shall not come into operation until the Minister, by notice published in the Gazette , directs that it shall come into operation. (3) Any person who carries on the business of a grader without a licence shall be guilty of an offence. - 26 Verify source ↗
Section 26
Premises where commercial grading of tobacco is carried out must be licensed by the Commission, after consultation with the Minister.
26. Commercial grading premises shall be licensed All premises where commercial grading of tobacco is earned out shall be licensed by the Commission after due consultation with the Minister. - 27 Verify source ↗
Appointment of grading inspectors
The Commission must appoint grading inspectors with the Minister’s approval. Grading inspectors may enter licensed commercial grading premises to inspect the premises and tobacco grading, and may open tobacco bales at licensed auction floors or commercial grading premises.
27. Appointment of grading inspectors (1) With the approval of die Minister the Commission shall appoint a grading inspector or grading inspectors who will have the power of entry to all licenced commercial grading premises for the purpose of inspecting the premises themselves and the grading of tobacco on such premises. (2) A grading inspector shall have power to open any bale of tobacco presented for sale at any licensed auction floor or at any commercial grading premises. - 28 Verify source ↗
Labelling of graded tobacco
Graders must label each graded tobacco bale with their licensed name and number.
28. Labelling of graded tobacco (1) Every grader shall label distinctively each bale of tobacco graded by him with his licensed name and number for identification purposes. (2) Any grader who wilfully fails to label his graded tobacco shall be guilty of an offence. Part VIII – Commission —General - 29 Verify source ↗
Tobacco used in manufacture
A person must not use Malawi-grown tobacco for manufacture for sale unless it was sold to that person or their agent through a licensed auction floor.
29. Tobacco used in manufacture (1) No person shall use for the purpose of manufacture for sale any tobacco grown in Malawi which has not been sold to such person or his agent across a licensed auction floor: Provided that ties section shall not apply to tobacco grown on customary land in excess of the requirements of the Farmers Marketing Board or of a person authorized to buy such tobacco under section 12 of the Tobacco Act and made by the grower into roll, twist, snuff, coil or ball tobacco for local sale or trade. (2) Any person who uses tobacco for the purposes of manufacture in contravention of this section shall be guilty of an offence. - 30 Verify source ↗
Commission may arrange for disposal of surplus tobacco
The Commission may, with the Minister’s written approval, collect surplus tobacco into pools and dispose of it through the Commission.
30. Commission may arrange for disposal of surplus tobacco (1) If at any time the Commission deems fit, it may, with the written approval of the Minister, arrange for the collection of surplus tobacco into pools and for the disposal of such tobacco through the Commission. (2) For the purposes of this section, “surplus tobacco” means tobacco delivered to a licensed auction floor for sale and remaining unsold and not removed therefrom after due notice given under section 31 . (3) The powers, duties and functions of the Commission under this section shall be such as may be prescribed by the Minister. - 31 Verify source ↗
Power of Commission to authorize destruction of tobacco left on floor
If unsold tobacco remains on a licensed auction floor after sufficient notice, the Commission may let the floor owner destroy it, and the tobacco owner is not owed compensation.
31. Power of Commission to authorize destruction of tobacco left on floor If at any time the owner of any tobacco left unsold on a licensed auction floor has failed to remove such tobacco after receiving such notice to do so as the Commission may deem sufficient, the Commission may authorize the owner of such licensed auction floor to destroy such tobacco without liability to pay compensation to the owner of such tobacco .
Part IX
Miscellaneous
- 32 Verify source ↗
Appeals
A person aggrieved by a Commission decision may appeal to the Minister, and the Minister’s decision is final.
32. Appeals Any person aggrieved by a decision of the Commission may appeal to the Minister whose decision shall be final and shall not be questioned in any court. - 33 Verify source ↗
Hindrance of person performing duty
A person must not wilfully obstruct or hinder anyone carrying out duties under this Act.
33. Hindrance of person performing duty Any person who wilfully obstructs or hinders any person in the performance of his duties under this Act shall be guilty of an offence. - 34 Verify source ↗
Failure to produce document
A person must not refuse to produce a licence or other document for inspection when asked by someone authorized to inspect it under the Act.
34. Failure to produce document Any person who refuses to produce for inspection a licence or other document issued under or required by this Act to any person authorized under the Act to inspect such licence or other document shall be guilty of an offence. - 35 Verify source ↗
Order prohibiting sale, etc., where licence, etc., believed violated
The Minister, or a person authorized by him, may order that tobacco not be sold, exchanged, moved, or graded if licence conditions appear to be violated.
35. Order prohibiting sale, etc., where licence, etc., believed violated (1) Where the Minister or a person authorized by him in that behalf has reasonable grounds to believe that the terms or conditions of a licence issued under Part IV, V and VII are not being complied with, he may issue an order prohibiting the sale, exchange, movement or grading of such tobacco until investigations therein have been completed. (2) Any person who fails to comply with such an order shall be guilty of an offence. - 36 Verify source ↗
Power of entry
Certain officials may enter land or premises used for buying, grading, or handling tobacco to check whether the Act is being followed.
36. Power of entry The Minister, a grading inspector or the Chairman of the Commission or any person authorized either by the Minister or by the Chairman of the Commission in writing in that behalf may enter upon any land or premises used for the purpose of buying or grading or handling tobacco for the purposes of ascertaining whether this Act is being complied with. - 37 Verify source ↗
Offences and penalties
A person who knowingly or recklessly gives false information or makes a false statement in an application or return under the Act commits an offence.
37. Offences and penalties (1) Any person who, in making any application under this Act or any return required by or under this Act, knowingly or recklessly gives false information or makes any false statement shall be guilty of an offence. (2) Any person who is guilty of an offence against this Act shall be liable to a fine of K200 and to imprisonment for three months. (3) When any person who holds a licence or permit under this Act is convicted of an offence against this Act, the Court may, in addition to any other penalty, order the cancellation of such licence or permit or order that any tobacco in respect of which an offence has been committed shall be forfeited. - 38 Verify source ↗
Regulations
The Minister may make regulations to carry out this Act.
38. Regulations The Minister may make regulations for the better carrying out of the purposes of this Act, and without prejudice to the generality of the foregoing such regulations may provide for— (a) the forms to be used for any licence, return or application; (b) the fees for any licence or application; (c) general conditions to be attached to licences required under this Act; (d) the returns to be made for the purposes of this Act; (e) the penalties for breaches of the regulations; (f) any matter to be or which may be prescribed under this Act.
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