Proc. No. 21 of 1902. Summoning of writ or plaint or proceeding in case the person or place be therein described so as to be commonly known. 45. Whenever any person whom it shall be necessary to witnesses resident in examine as a witness in the course of any preparatory another district. examination or at a trial of any cause whether civil or criminal before any of the Resident Magistrates as aforesaid shall reside or be for the time within any other district than that of such Magistrate, then, and in every such case, it shall be lawful for the said Magistrate to issue a summons for the attendance of such person before him in the like form as is by law provided in respect of summonses to be issued in like cases for procuring or compelling the attendance of witnesses residing or being within the district of the Resident Magistrate issuing the same; and every such summons when endorsed by the Resident Magistrate or any Justice of the Peace for such other district within which the person so to be summoned resides for the time or shall be found (who are hereby respectively authorised and required on production to them of any such summons to endorse the same), and being duly served and returned by any person authorised to serve such a summons in either of the said districts shall have in law the like effect in requiring the attendance of such person as aforesaid before the Magistrate by whom the same was issued, and in rendering such person if he shall fail so to attend liable Examination of to every penalty provided for the non-attendance of persons witnesses resident summoned as witnesses, as if such person at the time when in other districts by such summons was served had resided or been within the interrogation. district of such last mentioned Magistrate: Provided that as often as any witness in any civil case brought in any Court of Resident Magistrate shall reside or be in a district other than that under the jurisdiction of such Court, it shall be lawful for the Court in which such civil action shall be brought, should it appear to be for the convenience of the witness and to be consistent with the ends of justice upon the request of either party and after hearing the other party, to frame or approve of such interrogatories as either party shall desire to have put to such witnesses and to forward the same (together with the reasonable expenses of such witness which shall be advanced by the party desiring his examination) to the resident Magistrate of the district within which such witness shall reside or be, who shall summon such witness to appear in his Court, and upon his appearance shall take his evidence in manner and form as if a witness in a case pending in such last-mentioned Court and shall put to such witness the interrogatories aforesaid, and all other questions calculated to obtain full and true answers to such interrogatories, and shall take down or cause to be taken down in writing the evidence of such witness, and shall transmit the same certified as correct to the Resident Magistrate in whose Court such civil case shall be pending; and such evidence (subject to all lawful objections) shall be received as evidence in such case: Provided also that every witness so of examination upon summoned by any Resident Magistrate to appear to answer interrogatories. any such interrogatories as aforesaid shall be summoned in like manner, and be liable to the like penalties in case of nonattendance as if such summons was a summons to give Procedure in cases Proc. No. 21 of 1902. Penalty for failure evidence in the Court of such last-mentioned Resident Magis- 46. It shall be lawful for any Court of Resident Magistrate in any civil case where it may be necessary or expedient and consistent with the ends of justice so to do, to appoint a fit and proper person to be a Commissioner, to take the evidence of any witness upon application of any one of the parties of which application, due notice shall have been given to the other party, and the evidence so taken (subject to all lawful exceptions) shall be received as evidence in such case. esse. Commission de bene Proceedings where in 47. If any claim shall be more to or in respect of any third parties claim movable property taken in execution under the process whether goods taken civil or criminal of any Court of Resident Magistrate, or to or execution. in respect of the proceeds or value thereof by any person not being the party against whom such process was issued, it shall be lawful for the Clerk of the Court issuing such process upon the application of the Messenger, as well before as after any action brought against him, to issue a summons calling before the Court as well, the party suing out such process as the party making such claim, which summons shall be in the form in that behalf in the Rules and Regulations of the Courts of Resident Magistrates contained: And thereupon any action which may have been brought in any other Court in respect of such claim shall be stayed, and the Court in which action shall have been brought or any Judge thereof on proof of the issue of such summons, and that the movable property in question was so taken in execution, may order the party bringing such action to pay the costs of all proceedings had upon such action after the issue of the summons aforesaid, and the Court of Resident Magistrate issuing such summons shall adjudicate upon such claim, and make such order between the parties in respect thereof, and of the costs of the proceedings as to such Court shall seem just and lawful, and such order shall be deemed to be a judgment of such Court and shall be enforced and may be appealed from in like manner as any other judgment. Proc. No. 21 of 1902. punishable. * Contempts of Court 48. If any person shall wilfully insult the Resident Magiswhat and how trate during his sitting in any such Court, or any Clerk or Messenger or other Officer of any such Court during his attendance therein, or shall wilfully interrupt the proceedings of such Court or otherwise misbehave in such Court, it shall be lawful for any constable or private person by order of the said Court to take such offender into custody and to detain him until the rising of the Court, and the Resident Magistrate shall be empowered if he shall think fit by warrant under his hand to commit any person so offending to prison for any period not exceeding seven days, or to impose upon any such person a fine not exceeding five pounds for every such offence, and in default of payment thereof to commit the offender to prison for any time not exceeding seven days unless the said fine be sooner paid. But in any case in which any such Court shall commit or fine any person under the provisions of this section for contempt of Court, the Resident Magistrate shall without delay transmit to the Registrar of the High Court of the Transvaal for the consideration of a member of the said Court in Chambers a statement certified by such Magistrate to be true and correct of the grounds and reason of his proceedings, and shall also furnish to the party committed a copy of such statement so certified as aforesaid. Former Landdrosts' Courts abolished. Records, &c., to be preserved in Resident Magistrates' Courts. Access to records. 49. All Courts of Landdrost shall from and after the taking effect of this Proclamation be abolished, and all the records and proceedings whatsoever of and belonging to any such Court shall be kept and preserved of record in the Court of the Resident Magistrate hereby created and established having jurisdiction over a district comprising the town or village in which such former Court was holden; and all parties concerned shall and may have access and recourse to the said records and proceedings, and to the records and proceedings of any of the Courts created and established under or by this Proclamation or by Proclamation No. 6 of 1901; and every judgment and sentence of any inferior Court which heretofore existed within any district of this Colony shall and may be proceeded upon in the Court of the Resident Magistrate hereby created and established having jurisdiction over a district comprising the town or village in which such former Court was holden, precisely as if the complaint or action whereon the same was given or pronounced had been originally commenced, and the said judgment or sentence given or pronounced in such lastmentioned Court. And if at any time hereafter Courts of Resident Magistrates should be created by any such notice as in the second section of this Proclamation mentioned, and the district assigned for the jurisdiction of such Court by any such notice as is in the fifth section of this Proclamation mentioned should be composed of any territory before, then under the jurisdiction of some other Court of Resident Magistrate any judgment or sentence of such last-mentioned Court pronounced previously to the publication of such last-mentioned notice, and affecting any person or any property in such territory shall be For powers of Magistrates to enforce obedience to interlocutory and other orders made by them under this Proclamation, see Ord. 36 of 1903. as valid and effectual, and may be proceeded upon precisely in the same manner as if such territory still remained under the jurisdiction of the Court by which such judgment or sentence was pronounced. Proc. No. 21 of 1902. may 50. All proceedings, prior to judgment or sentence, which Proceedings pending shall be pending in any Court of Resident Magistrate or in any continued. Court of Landdrost of the late South African Republic at the time of the commencement and taking effect of this Proclamation may be proceeded with in any Court of Resident Magistrate established by this Proclamation in case such lastmentioned Court would have jurisdiction in regard to such proceeding were the same commenced de noro. 51. The rules, orders and regulations respecting the manner and form of proceeding in civil and criminal cases before the Courts, hereby established or authorised so to be, shall be the rules, orders and regulations in that behalf in the Schedule to this Proclamation contained marked "B"; and every rule, order or regulation in the said Schedule contained shall be deemed and taken to be of the same force and effect as if the same or the substance thereof had been embodied in so many enacting clauses of this Proclamation. And it shall be lawful for the members of the High Court of the Transvaal by any rule or order to be made in like manner as may from time to time be directed, as to general rules and orders of the said High Court to amend or repeal any of the rules, orders or regulations in the said Schedule to this Proclamation contained, and to frame such other or additional rules respecting the manner and form of procedure, and the fees and charges to be taken by officers and practitioners in the said Courts, as may be found necessary, and any such amendment or additional rule so made and framed shall have the same force and effect as if it had been originally inserted in the Schedule to this Proclamation. now be Rules of Court as in Schedule. Resident Magis 52. Save as by this Proclamation or by any other law provided the Resident Magistrate of each of the said districts trate to have former shall exercise all the jurisdictions and powers, discharge the powers of Landdrost. duties, and enjoy all the privileges heretofore exercised and enjoyed by Landdrosts under the existing laws of the late South African Republic; and whenever in any law or resolution of the Volksraad of the late South African Republic, the term "Landdrost " is used the term shall be deemed and construed to mean the Resident Magistrate. SPECIAL PROVISIONS FOR THE WITWATERSRAND DISTRICT 53. The Resident Magistrate for the District of Witwatersrand shall be officially styled "The Chief Magistrate for the District of Witwatersrand"; wherever in any Law the Court of Resident Magistrate at Johannesburg is referred to the Court of Resident Magistrate for the District of Witwatersrand shall be taken to be meant thereby. 54. There shall be appointed for the said District, an Officer to be styled "The First Civil Magistrate at Johannes Title of Chief Magistrate. First and Second Civil Magistrates at burg,' " and another to be styled "The Second Civil Magistrate at Johannesburg," each of whom shall be subordinate to the Chief Magistrate, and shall have and exercise at Johannesburg, and within that portion of the said district over which the Special Landdrost at Johannesburg formerly exercised jurisdiction, all powers and jurisdiction conferred by this Proclamation, or by any other law on Resident Magistrates in all civil cases and proceedings, and generally in all matters not of a criminal nature; and shall hear and determine all such civil cases and proceedings as may be assigned to them by the Governor or by the Chief Magistrate. Every person so appointed to be the First or Second Civil Magistrate at Johannesburg shall before exercising any of the functions of his office take the oaths of allegiance and of office set forth in Schedule "A" to this Proclamation before any Justice of the Peace in the said Districts who is hereby empowered and required to administer the same. 55. All the provisions of this Proclamation relating to Courts of Resident Magistrates, and all rules, orders and regulations in Schedule "B" respecting the manner and form of proceeding in civil cases, shall mutatis mutandis apply to proceedings before the said First and Second Civil Magistrates at Johannesburg. 56. A Court to be called the "Native Court" shall, and the same is hereby declared to be erected, constituted and established at Johannesburg for the said District. 57. The said Court shall have jurisdiction to try all contraventions by coloured persons of the provisions of any law or regulation applicable exclusively to such persons, and all offences by such persons against any provisions of the Laws relating to Masters and Servants, and all matters of dispute of a civil nature between coloured persons falling within the jurisdiction of a Court of Resident Magistrate. If any question arises as to whether or not any party to any proceedings, civil or criminal, is a coloured person, such question shall thereupon be decided by the presiding Magistrate whose decision shall be final; but he shall give the benefit of any doubt thereon in favour of the accused. 58. The provisions of this Proclamation relating to the proceedings of Courts of Resident Magistrates and the rules, orders and regulations in Schedule "B" thereof shall as far as possible apply to the proceedings before the said Native Court; provided that any civil suit or proceeding to which the parties are natives as hereinafter defined may be dealt with according to native law and custom, and in case of there being any conflict of law or custom by reason of the parties being natives subject to different laws and customs the suit or proceeding * Jurisdiction extended by Pr. Tr. 40 of 1902 to contraventions of Native Passes Proclamation 1901, and of the Masters and Servants' Law where either the complainant or the accused is a coloured person, and see also Ord. 16 of 1903, under which the Magistrates of the Native Court are given jurisdiction to hold inquests under Pr. Tr. 10 of 1901. |