Messenger of the Court, and shall be as near as may be in the form following: 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 (or Whereas upon application made by A.B. in the matter of &c.) the Court did decree that the said defendent should deliver to the said plaintiff a certain (describe the thing to be delivered, or state what the decree of the Court is). This is to authorise and require you to take the said (describe the thing) from the said defendant or any person claiming from, through, or under him, and place the said plaintiff in possession thereof (or state what is to be done) for which this shall be your warrant. And return to the Court what you have done in pursuance hereof. Dated at.....................this.........day of............................. .190...... Clerk of the Court. 58. Where the judgment or sentence of the said Court in any case is appealed from, and the said appeal is duly prosecuted in manner provided for that purpose the Clerk of the Court shall forthwith transmit the proceedings in the said case to the Registrar of the High Court of the Transvaal, together with a certificate under his hand subjoined to the said proceedings in the following terms :Court of the Resident Magistrate, I... District of........ .Clerk of the Court of Resident Magistrate for the district of. .....hereby certify and declare that the above are the true proceedings in the case A.B. against C.D.; and that the said proceedings contain true notes of all evidence received by the said Court, objected to, or offered by either party, and rejected by the said Court on the hearing of the said case. Payment of fines. Security by plaintiff in certain cases. Edictal citation 59. All fines imposed by the Court in any case, civil or criminal, shall be paid to the Clerk of the Court; and the same together with all fees of office received by him in every month shall be paid over on the first day of the following month to the Receiver of Revenue of the district; and the said Clerk shall deliver therewith an account in such form as the Receiver of Revenue shall, from time to time direct. And the officers of the said Court shall take such fees as are allowed by law, and the same shall be taken at a time when anything is required to be done by any officer for which such fees are allowed. 60. If the plaintiff is not domiciled in this Colony, or is an unrehabilitated insolvent, the defendant may require him to find security for the costs of the suit before the case is proceeded with. 61. In all cases where it may be necessary to sue anyone by edict, the plaintiff shall first apply to the Court for leave so to do, and if such leave be granted the Court taking the circumstances into consideration shall determine the manner in which the summons is to be served as also the date of appearance. In case no appearance shall be made by the defendant, judgment shall not be given against him unless a statement under oath be made or the Court be Proc. No. 21 of 1902. satisfied in some other "CRIMINAL." 62. Where the Public Prosecutor shall by virtue of his office have determined to prosecute any party in the said Court for any crime or offence within the jurisdiction of the said Court he shall forthwith lodge with the Clerk of the Court, a statement, in writing of the charge or complaint against the said person describing him. by his name, surname, place of abode, and occupation or degree; and setting forth shortly and distinctly the nature of the said crime or offence, and the time and place at which the same was committed. Complaint by pri 63. Any private person entitled to prosecute for any crime or offence may prosecute summarily for such crime or offence by lodg. vate party. ing his complaint with the Clerk of any Court of Resident Magistrate having jurisdiction, nor shall any certificate of any competent Public Prosecutor to the effect, that he declines to prosecute for such crime or offence be neccessary. But any competent Public Prosecutor, may at any time, before judgment intervene in any such case, and assume the management and conduct thereof, and the Clerk of the Court shall in the column of the criminal record book hereafter mentioned headed " Remarks," &c., make an entry of such intervention. Criminal 64. The Clerk of the Court shall keep a book ruled and divided into columns headed and entitled according to the form in the Book. schedule hereunto annexed marked "D" which shall be called "The Criminal Record Book of the Court of the Resident Magistrate, District of............... ." and the said Clerk shall enter therein in manner hereinafter set forth all criminal proceedings in the said Court and shall present the said book to the Resident Magistrate at the first sitting of the Court upon every Court day, and the Magistrate shall, before the rising of the Court sign the same. Record Particulars to be 65. The Clerk of the Court shall, upon such complaint being lodged with him, either by the Public Prosecutor or any private kept. party forthwith enter into the proper columns of the Criminal Record Book, the name of the Prosecutor, the name of the party charged, the crime or offence charged or complained of the day of commitment of the party charged, and by whom committed, and any remarks which it may be proper to record. 66. All persons to be prosecuted upon any criminal charge in the said Court shall be brought to trial at the next possible Court day; but whenever it shall be made to appear on oath to the satisfaction of the Resident Magistrate that any criminal case cannot be proceeded with upon the day appointed for that purpose without danger of defeating the ends of justice, he shall adjourn the hearing thereof to some future Court day, which day shall be specified by him; and the said adjournment and the cause thereof shall be noted by the Clerk in the last column of the said Criminal Record Book ; further adjournments may, if necessary, be made from time to time. Trial of offenders. Summons by Mes 67. The Clerk of the Court shall upon or after. the lodging of the said complaint at the request of the prosecutor (and at his senger. charge where the prosecution is by a private party) issue and deliver to the Messenger of the said Court, the process of the said Court Proc. No. 21 of 1902. for compelling the appearance of the said party to answer the charge and of the witnesses in support thereof, together with so many copies of the said process as there are persons to be summoned, if there be more than one; and the said Messenger shall serve a copy thereof on every defendant, and shall at the same time explain to him the nature and exigency of the said process; and the said process shall be by summons, and shall be as near as may be in the form following: To the Messenger of the Court. Court of the Resident Magistrate, You are hereby required and directed in His Majesty's name on the sight hereof to summon.. .next at............o'clock of &c., (describing him particularly) that he appears personally before the Court day of..... ..a copy of this .190... Clerk of the said Court. Cases where summons unnecessary. Compelling attendance of witnesses. 68. It shall not be necessary to issue a summons in respect of petty cases upon complaint of the police, cases of drunkenness and contravention of the Liquor Law, breaches of the peace, petty assaults, contraventions of the Master and Servant's Law, of Town Regulations, and of Native Pass Laws; the accused may, in any such case, be summarily prosecuted, the charge being described in the charge sheet. The accused or his legal adviser shall be entitled at all reasonable times to inspect the charge as noted with the Clerk of the Court or filled in on the charge sheet. 69. Either, party desiring to compel the attendance of any person to give evidence in any criminal case, may take out of the office of the said Clerk of the Court the process of the Court for that purpose; and in like manner when the party charged with any offence is unable to pay the costs of such process, the Clerk of the Court shall summon on his behalf such witnesses as he shall desire to have summoned, and shall satisfy the said Clerk to be material and necessary for his defence; and the said process shall be as near as may be in one or other of the following forms. To the Messenger of the Court. of Court of the Resident Magistrate, District of........... You are hereby required in His Majesty's name to summon of &c. and next at of &c. of &c....... Dated at....... .190... ..this............ day of............ Clerk of the Court. To the Messenger of the Court. Court of the Resident Magistrate, You are hereby required and directed to summon... of, &c. (describing them particularly) that they and each of them appear person- Dated at.... this............ day of............... .190... Clerk of the Court. Proc. No. 21 of 1902. Non-appearance of 70. If upon the day appointed for the appearance of any party to answer any charge he shall neglect to appear, and the Court accused. shall be satisfied, upon the return of the Messenger, that he was duly summoned, then the Resident Magistrate shall, on the request of the prosecutor, issue his warrant for the apprehension of the said party, and shall also, if he think fit, impose on the said party for his default a fine not exceeding five pounds sterling, and in default of payment of such fine may sentence him to imprisonment with or without hard labour for a period not exceeding one month, and may further declare the bail (if any) forfeited.* Non-appearance of 71. If the prosecutor, being a private party, do not appear on the Court day appointed for appearance, the charge or complaint private party proseshall be dismissed; and where the Court, upon hearing the charge cuting. or complaint, shall pronounce the same unfounded and vexatious, the Resident Magistrate shall award to the defendant, on his request, such costs as the said Magistrate may think fit; Provided always that such dismissal shall not prevent the Public Prosecutor from afterwards, should he see fit, taking up the case. 72. In case of the non-attendance of any person duly summoned to give evidence, and not having any lawful excuse allowed by the Court, the Resident Magistrate shall impose upon him the same fine as is provided for such default in civil cases before the said Court. 73. Where any person shall upon any Court day appear before the said Court to prefer any complaint against another who shall also appear thereto, and the said parties shall both be desirous of proceeding therein, the Court may after the other business of the day has been concluded cause the complaint to be recorded; and may forthwith hear and determine the same or adjourn the hearing thereof to some following day if the same be necessary as the Resident Magistrate shall see fit. 74. On the day of hearing the Court shall enquire of the accused his name and surname, and thereafter cause the charge or summons as the case may be to be read out to him and require him to plead thereto; and upon the plea being recorded the Court shall enquire into such charge or complaint by hearing such witnesses as may be produced in support thereof, and in like manner shall hear any evidence offered on behalf of the defendant. If the accused shall refuse to plead, the Court shall order a plea of "not guilty" to be entered and the trial shall proceed accordingly. * See also Ord. 15 of 1903, sect. 5. Non-appearance of witness. Summary determination of complaints. Procedure at trial. Proc. No. 21 of 1902. Accused may take exceptions before pleading to the charge. Evidence civil cases. 75. It shall be lawful for the accused before pleading to take any exception in law to the charge or summons. And the Court shall thereupon proceed to decide such exception: If the exception be overruled the case shall proceed in the ordinary way: If the exception be allowed and the charge or summons dismissed the accused may be re-charged on a new complaint for the same offence. as in 76. All persons examined or giving evidence in the said Court in criminal cases shall be examined and give evidence in the same manner and form as is provided in civil cases before the said Court. Order of Addresses to Court. Record of judg ments and sentences. Orders as to corpora delicti. Noting in record book of higher degrees of punishment than prescribed by Proclamation. Discharge of cused in case acquittal. ac 77. After the hearing of the evidence on both sides has been concluded the Prosecutor may address the Court on behalf of the prosecution and thereafter the accused or his Agent may address the Court. 78. All the judgments and sentences shall be pronounced in open Court and recorded by the Clerk of the Court in the proper column of the Criminal Book. 79. The Court may, upon or after passing sentence, give a special order as to the return of the corpora delicti to the person thereto entitled or may order that the same are to be forfeited to the Court. 80. If the sentence of the Court be for any higher degree of punishment than is prescribed by the "Magistrates' Courts Proclamation, 1902," the Clerk of the Court shall also note in the last column of the Criminal Record Book the particular law authorising the said punishment and giving jurisdiction to the said Court. 81. Any person acquitted upon any charge or complaint or of where the same shall be dismissed for want of prosecution thereof shall forthwith be discharged out of custody. And any person who shall once have been called upon to any charge and who shall once have pleaded "Not Guilty" thereto shall be entitled to demand that he either be acquitted or found guilty: Provided, however, that the Court may after a case has been partially heard adjourn the further hearing thereof until some future time in case it should be made to appear by either the prosecutor or the party accused that some witness material to the case and who without neglect or default of the party applying for the adjournment is not present will probably be present in case an adjournment be granted. Committal to gaol of persons sentenced. 82. All persons sentenced by the Court of the Resident Magistrate in any district to undergo the punishment of imprisonment shall be committed to the gaol of the said district for the purpose aforesaid by warrant under the hand of the said Magistrate in the form following that is to say:— Court of the Resident Magistrate, To the Gaoler or Keeper of His Majesty's Gaol for the District of.... Whereas the undermentioned prisoners were this day respectively and duly convicted before me of the several offences undermentioned, and were for the said offences sentenced by me to undergo the several punishments respectively affixed to their names; this is therefore to require you, in His Majesty's name to receive the said several prisoners into your custody, and there safely keep them, until they |