Proc. No. 21 of 1902. Period of imprisonment and effect of liberation. Costs of proceed ings for imprisonment by whom payable. Proceedings for recovery of possession of a house, &c., upon return of nulla bona in action for rent. 21. No defendant shall be detained in prison under any such warrant as aforesaid in any case in which the debt and costs mentioned in such warrant shall together amount to less than Five Pounds for any period longer than one month; nor in any case whatever for any period longer than six months; and no defendant once discharged shall ever be again arrested for the same debt or cause of action: Provided always, that when any defendant shall be discharged from prison by reason merely that any such period as aforesaid has expired or by reason of any charges for maintenance remaining unsatisfied such imprisonment and discharge shall not be deemed to be a satisfaction of the debt, damages or costs for which he was taken in execution so as to prevent the plaintiff from having further execution against the property of such defendant: And provided also, that every defendant imprisoned under any such warrant shall be discharged forthwith upon payment of the amount of debt and costs mentioned in the said warrant. 22. All and singular the costs and charges incurred in any proceedings for civil imprisonment shall be payable and paid by the plaintiff who shall not (except as hereinafter accepted) recover or have the same or any of them from the defendant: Provided always, that if in any case in which any such decree of civil imprisonment shall be made or granted it shall be made to appear to the Court at the time of granting the same that the non-payment by the said defendant of the debt and costs due by him and then in question is vexatious it shall be lawful for such Court to allow against such defendant the costs and charges aforesaid or any part thereof which to the Court may seem fit: And provided also, that nothing in this section contained shall be construed so as to affect any settlements by means of terms offered by the defendant and accepted by the plaintiff or to prevent the Court from taking such costs and charges into its consideration in any case in which terms are proposed by the defendant as fair and reasonable for the purpose of being sanctioned by the said Court and carried into effect by its authority. 23. Whenever a judgment of any Court of Resident Magistrate shall have been obtained for the amount of any rent of any house, land or premises and it shall appear by the messenger's return that no movable property has been found wherewith to satisfy the judgment it shall be lawful for the plaintiff to serve upon the defendant a notice in writing informing him that application will be made to such Court for an order condemning him to deliver up possession of the house, land or premises in respect of which the said rent shall be due Provided that no claim or demand for the delivery up of possession as aforesaid shall be entertained in any case in which the lease or contract of hire or the term thereof yet to come and unexpired shall be of a value which is above the jurisdiction of any Court of Resident Magistrate under the twelfth section of this Proclamation. 24. It shall be lawful for the Court of Resident Magistrate, Proc. No. 21 of 1902. Decree for delivery upon proof of such return, as aforesaid, and of the due service up of possession and of such notice, as aforesaid, and after hearing the plaintiff, and its effects. 25. If it shall be made to appear to any such Court, as aforesaid, at the time of the hearing of any action brought for the recovery of any such rent, as aforesaid, either by the admission of the defendant or otherwise, and whether such defendant shall personally appear at any such hearing or not, that there is no property to be found against which to execute any process of execution, the said Court may then and without the issue of any such process or any fresh summons condemn the defendant to deliver up possession, as aforesaid, in like manner as if he had been duly served with a notice in manner and form as in the twenty-third section of this Proclamation mentioned. Court in a certain case may in an action for rent decree delivery up of possession. trate. When appeal made judgment either executed or 26. It shall be lawful for any person being a party to any Appeal against civil suit or action depending in any Court of Resident Magistrate judgment of Magisto appeal against any final judgment decree or sentence of such Court, or against any rule or order made by such Court in any such civil suit or action having the effect of a final or definitive sentence to the High Court of the Transvaal; and in every such case in which any such appeal shall be made, the Resident Magistrates shall, and are hereby respectively empowered, either to direct that the judgment, decree, rule, order, or sentence appealed from, shall be carried into execution, or that the execution thereof shall be suspended, pending such appeal as to the said Resident Magistrates respectively may in each case appear to be most consistent with real and substantial justice and in case any Resident Magistrate shall direct any such judgment, decree, rule, order, or sentence, to be carried into execution, the person in whose favour the same shall have been given shall, before the execution thereof, enter into good and sufficient security, to be approved by such Resident Magistrate, for the due performance of such judgment or order, as the said High Court shall think fit to make thereupon; and in case any Resident Magistrate shall direct the execution of any such Proc. No. 21 of 1902. judgment, decree, rule, order, or sentence, to be suspended, pending such appeal, such Resident Magistrate shall, and may whenever it shall appear to him necessary and consistent, with real and substantial justice so to do, require the person against whom such judgment, decree, rule, order, or sentence, shall have been given, before any order for the suspension of any such execution is made, to enter into good and sufficient security to be approved by such Resident Magistrate for the due performance of such judgment or order as the said High At what time Court shall think fit to make thereupon: Provided appeal to be taken. always, that every such appeal shall be taken, entered and made within such time and in such manner as is directed and required by the rules and regulations for the time being of the Courts of Resident Magistrates: And the said High Court on may reverse or alter the judgment of the said Court of Resident Magistrate as justice shall require, and in case the record of the Resident Magistrate shall not furnish sufficient evidence or information for the due determination of the case may remit the said record to the Court of the Resident Magistrate with instructions in regard to the taking or setting out of further evidence or information: or such High Court may order the parties, or either of them, to produce at some convenient time in such Court, such further proof as shall seem necessary or desirable or such High Court may take such other course as may lead to the just, speedy, and as much as may be inexpensive settlement of the case, making such order in regard to costs as justice shall require. Procedure appeal. 27. If any action shall be commenced in the High Court of the Transvaal or Witwatersrand District Court for or upon any cause of action other than some one of those in the next succeeding Section mentioned, for which cause an action might have been commenced in some Court of Resident Magistrate, and judgment shall be given for the plaintiff for a sum less than five hundred pounds, exclusive of interest, if such action be founded upon a liquid document, as in the twelfth Section of this Proclamation mentioned, or less than one hundred pounds if such action be not founded upon a liquid document, such plaintiff shall not recover any costs exceeding the estimated amount of the costs which he would in the same case have recovered in the Court of Resident Magistrate had he brought his action therein, and if judgment shall be given in favour of the defendant he shall be entitled to his costs as between Attorney and client unless in either case the Court trying the action shall find and record that the said action from its nature or circumstances was fit to be brought into such court. 28. In all cases in which the plaintiff resides in a district other than that in which the defendant resides and no part of the cause of action arose in such last-mentioned district and in all cases where a claim or demand is founded upon any notarial or other mortgage bond or bill of exchange or promissory note or other liquid document of which the lawful holder for valuable consideration does not reside in the same district with the defendant, and in all cases in which any action shall be brought against any officer of any such Court for or on account of anything relating to his conduct in his office the plaintiff may bring his action in the High Court of the Transvaal, although some Court of Resident Magistrate might have had jurisdiction, and in that event the question of the costs in such action shall be judged of by the said High Court in like manner as if it could not have been brought in any other Court. Proc. No. 21 of 1902. Enrolment of 29. It shall be lawful for every Court of Resident Magistrate to admit and enrol as Agents in the said Court so practitioners. many persons of full age and of good fame and character as shall be desirous to be so enrolled and who have either been duly admitted to practice as Law Agents in the Courts of Landdrost of the late South African Republic or who have passed the examinations which under the laws thereof would have entitled them to be so admitted. Jurisdiction of 30. Every such Court shall possess and exercise over or in respect of all Agents so enrolled the like powers and author- Court over enrolled ities as the High Court of the Transvaal possesses and exercises practitioners. over or in respect of the Attorneys thereof, and may summarily enquire into any charge of misconduct preferred against any Agent, and should the same prove to be well-founded may remove such Agent from the roll of Agents either absolutely or conditionally or may suspend such Agent from practice in the said Court for a limited period in all cases in which under similar circumstances arising in or out of proceedings in the said High Court any Attorney thereof might lawfully have been by the said Court proceeded against and punished in the same manner: Provided always that every Resident Magistrate shall record the evidence upon which he shall have ordered any such removal or suspension and that any Agent who shall conceive himself to be aggrieved by any such removal or suspension may bring the same in review before the High Court of the Transvaal which Court may confirm or set aside the same; and when and as often as any such removal or suspension shall be set aside no costs shall be awarded against the Magistrate ordering the same in case he shall appear to have acted bonâ fide and upon reasonable and probable cause: Provided always that even if such removal or suspension shall not be brought in review the Magistrate so removing or suspending any Agent shall nevertheless transmit to the Registrar of the High Court of the Transvaal a certified record of the evidence upon which the said removal or suspension was grounded, and it shall be lawful for the said Court in case it should deem such removal or suspension one fit to be rescinded or reconsidered to make such order in the matter as shall to justice appertain: And provided, further, that it shall at all times be competent for the Council of the Incorporated Law Society of this Colony to bring to the notice of the High Court of the Transvaal any facts regarding the conduct of any Law Agent whether the same shall or shall not already have been adjudicated upon by a Resident Proc. No. 21 of 1902. Fees recoverable tioners from client. further, that nothing herein contained shall be construed so as Magistrate which in the opinion of the said Council ought to be brought to the notice of the High Court of the Transvaal, and such Court may thereupon remove such Agent from the roll of Law Agents or may suspend such Agent from practice for a limited period or may make such order in the matter as shall to justice appertain. 31. The costs and charges in connection with any by enrolled practi- proceedings under this Proclamation shall be payable and paid according to the scale provided by Law No. 12, 1899, for the Courts of Landdrost of the late South African Republic until such scale is altered by any rules made by the members of the High Court of the Transvaal under Section fifty-one of this Proclamation. Fees recoverable from opposite party in regard to employment of an enrolled agent. Advocates appear. Costs. 32. The party, whether plaintiff or defendant, in whose favour any judgment of any Court of Resident Magistrate in any civil action or proceeding shall be pronounced shall, subject to the conditions hereinafter mentioned, be allowed in the taxation of costs against the opposite party the expense of the Agent, if any, employed by the party successful according to the scale aforesaid: Provided always, that nothing herein contained shall be construed so as to deprive any such Court of discretionary power to refuse costs to any suitor to whom it would in the judgment of such Court be inequitable to allow the same. may 33. Any Advocate of the High Court of the Transvaal may appear and plead in any civil action or proceeding depending in any Court of Resident Magistrate: Provided always that the fees of such Advocate shall not be charged in the taxation of costs between party and party. Attorneys to be deemed enrolled Agents. Jurisdiction in criminal cases. Punishments. 34. Every Attorney duly admitted to practise in the High Court of the Transvaal shall be entitled to practise in any Court of Resident Magistrate without payment or enrolment but shall be considered in the taxation of costs and in other respects as an enrolled agent. 35. Every Resident Magistrate shall have jurisdiction in all cases of crimes and offences wherein any person may be accused of any crime or offence not punishable by death, transportation or banishment from this Colony: Provided always, that it shall not be lawful for any such Resident Magistrate to punish any offender in any higher or more severe manner than by fine not exceeding the amount of seventy-five pounds sterling or by imprisonment with or without hard labour, and with or without spare diet and with or without solitary confinement or either of them for a period not exceeding six months or by a whipping privately in prison not exceeding twenty-five lashes: Provided that any offender may be punished by both such fine and such imprisonment or by both such imprisonment and such whipping or by both such fine and such whipping: And provided also that in regard to the infliction of spare diet or solitary confinement the Resident Magistrates shall observe and conform to such regulations and restrictions as shall from time to time be deemed necessary to prevent injurious consequences and be by the Governor issued for their guidance: And provided |