Procedure in absence of defendant. called, and if they, or any one duly authorised on their behalf, appear he shall record the same, and the Court shall proceed to enquire of and determine the said complaint or demand, and the defendant or his agent, whether he will confess or deny the same, or if he will make any counter-claim against the plaintiff, and his answer shall be recorded. 16. If the defendant deny, or except to the said complaint, or make counter-claim, the Court shall, when so requested by the plaintiff, postpone the hearing of the case, and order the defendant to give notice in writing to the plaintiff of the nature of his defence exception or counter claim, within such time as the Court may think reasonable.* The costs of such postponement shall be in the discretion of the Magistrate. any 17. If neither the defendant, nor anyone admitted for him, appear on the Court day appointed for that purpose, then the said Court upon the request of the said plaintiff, and being satisfied by the return of the Messenger of the Court endorsed upon the summons that the same hath been duly served, shall proceed to hear the said plaintiff and his witnesses, and cause the evidence to be taken down in writing, and shall give judgment thereon against the said defendant in the full sum due by him or awarded against him by the Court, Provisional judg- but the said judgment shall only be provisional in its nature, and no execution shall issue upon it until the plaintiff, together with some one as his surety to be approved of by the said Court, shall give security for full restitution of the amount to be levied and raised under such judgment should the same be reversed, and the form of such security shall be the same as that set forth in the thirty-fourth of these rules and regulations, save and except that the words "notwithstanding the said C.D. has noted an appeal against the same" shall be omitted in the body of the said form, and the word "cause" shall be substituted for the word "appeal" in the end thereof. ment. Procedure for setting aside of provisional judgment by defendant, and re opening of case. When provisional 18. The defendant may at any time within three months next after the levy made under any writ of execution, issued by virtue of any such provisional judgment, take out a summons of the said Court, calling upon the plaintiff in the original action to show cause why the judgment obtained by him should not be reversed. And, if it shall be made to appear to the said Court by oath, that the defendant was absent from his home at the time when the summons of the said Court was served, and that he did not receive the same a sufficient time before the day of the return thereof to be able to obey the same, and that he did not absent himself from home for the purpose of avoiding the service of the said summons, or that having been duly summoned, he was by just and reasonable cause prevented from attending the Court in pursuance of the said summons, then the said Court shall order the said judgment to be opened, and shall permit the defendant to answer the said complaint, or demand upon the terms nevertheless of payment of the costs incurred by his default; and the evidence before given by the said plaintiff shall, on the re-hearing of the case, be read from the evidence and proceeding taken down by the Clerk of the Court, and the said plaintiff shall be at liberty to bring further evidence if he think fit: and upon the said re-hearing the case except as aforesaid shall proceed as if the defendant had appeared on the original summons. 19. If the defendant, or someone duly authorised on his behalf, judgment becomes do not within three months next after such levy as aforesaid take final. For powers of enforcing such an order by committal for contempt of Court see Ord. 36 of 1903. out such a summons as aforesaid, the provisional judgment shall become final, and the security aforesaid shall become ipso facto null and void. But if upon hearing of any such summons the judgment therein mentioned shall be reversed or set aside, then the defendant shall be entitled without any cession to sue upon the said security for the recovery of the sums therein mentioned, less the costs incurred by his default. Proc. No. 21 of 1902. Dismissal of plaint 20. If any person summoned to appear on any day to answer any complaint or demand shall appear according to the said on non-appearance of summons, and the party complaining shall make default, the Court plaintiff. shall adjudge the said plaint to be dismissed, or if he appear, and the judgment of the Court be for the defendant, the said Court shall adjudge to the said defendant his costs to be taxed by the Clerk of the Court. 21. After judgment of the Court against the party complaining for default of appearance, the same may, upon payment of costs, be admitted to commence a new action for the same cause, and the Court may, in any case when it shall see fit, absolve the defendant from that instance instead of giving judgment in his favour, in which case the plaintiff, upon the payment of the costs awarded against him, may commence a new action for the same cause. But the judgment of the said Court given in favour of the defendant, when pronounced after hearing of the cause, is a perpetual bar to any other suit or action for the same cause. 22. When a case is postponed sine die, whether at the request of the parties or by the Court, the party who wishes to place such case again on the roll shall give the other party at least forty-eight hours previous written notice thereof. Terms on which action may be commenced de novo. Notice of postponement of case. Process to compel nesses. 23. The process of the said Court for compelling the attendance of any person to give evidence therein shall be by summons issued attendance of witby the Clerk of the Court, and directed to the Messenger thereof, and shall be served and returned by him in the same manner as any other summons of the said Court, and the said summons may be sued out by either party requiring the attendance of any witness, and shall be as near as is material in the form following, that is to say :- To the Messenger of the Court Court of the Resident Magistrate Summon A.B. of, &c., C.D. of, &c. and E.F. of, &c., that laying aside all and singular business and excuses they and each of them appear in person before this Court at..... .....on the............day of ....next at......... ...of the clock in the forenoon to testify and declare all and singular those things which they or any of them know in a certain case now pending in the said Court between I.K., plaintiff, and N.O., defendant; and that they or either of them by no means omit so to do at their peril. Serve on each of them the said A.B., &c., a copy of this summons and return to the said Court what you have done thereupon. 24. If any witness have in his possession or control any deed, instrument, or writing which the party requiring his attendance is desirous to show in evidence, then the said summons shall be in the form following, namely :-(as in the former case to the words “I.K., tecum. Plaintiff, and N.O., Defendant," and proceed as follows):-" And also that they bring with them, and produce at the time and place aforesaid, a certain deed or instrument in writing, bearing date, &c. (describing very accurately the thing to be produced), and that they or either of them by no means omit to do so at their peril. Serve, &c." (as before). 25. There shall be delivered to the said Messenger together with the said summons so many copies thereof as there are witnesses to be summoned, and also such sum or sums of money as the party for whom they are to be summoned intends that the said Messenger shall pay or offer to the said witnesses respectively for their travelling expenses: And if any person being duly summoned to give evidence, and his travelling expenses being paid or offered to be paid to him, and having no sufficient excuse, shall neglect or refuse to attend or give evidence according to said summons, then the said Court shall impose upon the said person a fine for his default, not exceeding twenty-five pounds sterling, and for nonpayment shall commit such person to the gaol of the said district for any time not exceeding one month. Provided that as often as any person duly summoned shall fail to appear, it shall be lawful for the Resident Magistrate, in case no lawful cause for such nonappearance shall seem to him to exist, to issue his warrant for the apprehension of the party making default in order that he may be brought up to give his evidence, and to be otherwise dealt with according to Law. The Court may on cause shown remit any such fine or punishment which it may have imposed. 26. If it shall appear to the said Court upon oath that any person who is a material witness for either party to any cause having been duly summoned, doth not attend at the hearing thereof, then the Resident Magistrate shall at his discretion either postpone the hearing of the said case to another day then to be appointed by him, or else take the examination of such witnesses as appear, and suspend the further hearing of the said case to another day: which postponement or suspension, and the cause thereof, and the day appointed for the further hearing shall be recorded. 27. All persons examined or giving evidence in the said Court shall be examined orally and apart and in open Court; and shall be sworn by the Resident Magistrate according to the form of the religion they respectfully profess, "to tell the truth, the whole truth, and nothing but the truth": but all persons entitled by law to affirm instead of taking an oath may so affirm. 28. Where in the course of any case it may be necessary for either party to produce and show to the Court any record, entry, or document of the said Court, it shall not be required of the said party to produce any office copy of such record, entry, or document; but the Clerk of the Court shall at his request produce and show or refer to the original. 29. In every civil case the Clerk of the Court shall take down the evidence and proceedings in writing, and shall also note any objections made by either party to any evidence received, or to any evidence or any document tendered by either party to the Court, and shall duly mark each document put in, and note such mark in the record. 30. The case on the part of the plaintiff having been heard, the defendant, or some one on his part, shall in like manner produce any writing or documents he may desire to have read to the Court and any witness to be examined in support of his answer or denial. Proc. No. 21 of 1902. Petition of in to intervene. 31. Any person having an interest in any proceedings pending in any Court of Resident Magistrate between other persons, may terested third parties petition such Court for leave to intervene, and the Court, after hearing the petition and also the parties, may make such order as the circumstances shall require. 32. All the judgments and sentences of the said Court shall be given in open Court, and shall be recorded by the Clerk in the proper column of the Civil Record Book. 33. Any party against whom any final judgment, decree, or order of the said Court has been given in any civil case (and a decree of absolution from the instance shall be deemed to be such a final judgment or sentence), if he intend to appeal therefrom to any superior court, shall within eight days after the granting of such judgment, decree, or order, make known his intention to the Clerk of the Court, who shall note his appeal with the date thereof in the Civil Record Book; the party noting such appeal shall prosecute the same within such time as may be prescribed by any rule of the High Court of the Transvaal, and in default of such prosecution, the appeal shall be deemed to have lapsed, unless the said High Court shall see fit upon motion to make an order to the contrary. A cross appeal may be noted at any time within eight days of the noting of appeal, and shall thereupon be prosecuted in the same manner, and within the same time as in the case of an ordinary appeal. Record of judg. ments. Notice of appeal. Security directed 34. In any case where an appeal may have been duly noted, and the Court may have directed that security shall be given, the by Court. said security shall be as near as may be in the form following: ..day of.... recovered by judgment of the Court of Resident Magistrate of the district of at... and...... ........ on this........ day of... A.B. Clerk of the Court. 35. Where the judgment of any Court of Resident Magistrate in any civil or criminal case shall be appealed from the Magistrate by whom such judgment was granted shall deliver to the Clerk of the Court for transmission to the Registrar of the Court for hearing of Magistrates in civil and criminal cases appealed against to send to Registrar of Court a statement of facts proved and reasons for judgment. the appeal a statement of the facts which he shall find to have been proved and his reasons for the judgment pronounced. : 36. After judgment or sentence of the Court is given in any case the Clerk of the Court shall, at the request of the party in whose favour the same is given, ascertain and allow the necessary costs and expenses of the said suit against the party to be charged therewith and in the said taxation he shall charge and allow all such necessary payments and disbursements made in the said case as are provided to be paid by the tariff of charges in force for the time being and all such other reasonable sums of money as the party in whose favour the said judgment or sentence is given has paid in bringing before the Court any necessary witnesses or evidence or otherwise and where he shall think it reasonable to allow any expense not herein provided for the same not being prohibited by any rule of the said Court, then he shall take the direction of the said Court thereon and make his allowance accordingly. Any party who objects to the taxation of the Clerk of the Court may bring the same free of charge into revision before the Magistrate, and the latter's decision may at any time within one month (exclusive of High Court vacation time) be brought into revision by way of application before the High Court of the Transvaal after due notice to the opposite party, failing which revision the objections made shall lapse. 37. The party in whose favour any judgment or sentence of the said Court shall be given in any civil case in regard to which an appeal shall not have been noted or having been noted shall have been withdrawn, may sue out of the office of the Clerk of the Court the process of the said Court for the execution thereof. 38. In all cases of appeal the said Court shall conform to and execute such judgments, orders and decrees as shall be afterwards made and pronounced thereon in like manner as any original judgment, sentence or decree by the said Court could or might have been executed. 39. The process for execution of any sentence or judgment of the said Court shall be by warrant under the hand of the Clerk of the Court directed to the Messenger of the said Court as near as may be in the form following, that is to say : Whereas in a certain case heard in this Court wherein A.B. of, &c., was the plaintiff and C.D. of, &c., was the defendant, the said A.B. on the..... day of last by the judgment of the Court recovered against the said C.D. the sum of.... together with the sum of for his costs (which said judgment has been duly affirmed on appeal-if the case so be-with the further sum of £.................for costs thereon) as appears in the proceedings of the said Court: this is therefore to require you that of the movable property of the said C.D. in this district you cause to be levied and raised the debt (or damages) and costs aforesaid, together with your charges about the same, and pay to the said plaintiff the debt (or damages) and costs aforesaid and return to this Court what you have done by virtue hereof for which this shall be your warrant. Dated at... this............ day of .19...... Clerk of the Court. |