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shall be dealt with according to the laws and customs applicable to the defendant.
The expression "native" shall include every person belonging to any aboriginal race or tribe of Africa south of the equator, and every person one of whose parents belongs to any such race or tribe.
59. The said Court shall be holden before such person as may be appointed by the Governor, and such person shall be styled the "Magistrate of the Native Court for the Witwatersrand District."
Native Court held
60. It shall be lawful for the Governor by notice in the Gazette to authorize and appoint the Magistrate of the said at other than ordinNative Court to hold a Court at such place or places within the ary place. said district other than the stated and ordinary place for holding the said Court, and at such times as the Governor may in such notice direct. The Native Court, so held elsewhere than at the stated and ordinary place for holding such Court, shall have and exercise the same jurisdiction in civil and criminal cases as that possessed by the said Court when held at the stated and ordinary place so fixed and appointed as aforesaid.
(1) When so required to act at the stated and ordinary
61. The Governor may from time to time appoint for the said District one or more fit and proper persons as Assistant trates Magistrates of the said Native Court, and every person so appointed shall have and exercise all the powers and jurisdiction conferred by this Proclamation on the Magistrate of the said Court within the local limits for which he is appointed to act.
(2) During the absence of the said Magistrate on leave,
Proc. No. 21 of 1902.
(3) At such place or within such local limits within the
Title of Presiding Magistrate.
63. Every person appointed Magistrate of the said Native Court, or an Assistant Magistrate thereof, 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 district, who is hereby empowered and required to administer the same.
Duties of Assistant
62. Every Assistant Magistrate of the said Native Court shall be subordinate to the Magistrate thereof, and shall act as Magistrates of Native such Assistant Magistrate
64. (1) No action shall be maintainable in in any Court established under this Proclamation for the recovery of or in
Magistrates Native Court to take oath of office.
Proc. No. 21 of 1902.
respect of the use and occupation of any property, movable or immovable, requisitioned by proper military authority, or used or occupied by any members of His Majesty's forces while on active service in this Colony under the authority of the Commander-in-Chief in South Africa.
(2) Every Court established under this Proclamation shall have jurisdiction over contraventions of any Martial Law order or regulation which has been published or may hereafter be published in the Gazette or in any other official publication, but none of the said Courts shall, save by request of the Commander-in-Chief of His Majesty's forces in this Colony, exercise jurisdiction over any crime or offence committed by any member of His Majesty's forces on active service in this Colony, or over any crime or offence affecting military operations or endangering the safety of His Majesty's forces on active service in this Colony.
(3) No Court established under this Proclamation shall exercise jurisdiction in any civil cause, matter or proceeding in which the cause of action arose prior to the first day of September, in the year nineteen hundred, unless the defendant, being domiciled within this Colony, has been served personally within the jurisdiction of the Court with the process of the said Court.
(4) It shall be lawful for the Governor from time to time, by notice in the Gazette, to declare that in any district or districts any or all of the provisions of this section shall no longer be of any force or effect.
65. The laws mentioned in the annexed Schedule "E," as also so much of any other law as may be repugnant to or inconsistent with the provisions of this Proclamation, shall, from and after the taking effect of this Proclamation, be repealed.
66. This Proclamation may be cited as "The Magistrates' Court Proclamation, 1902," and shall take effect from and after the eighth day of May next.
FORM OF OATH OF ALLEGIANCE.
....do sincerely promise and swear that I will be faithful, and bear true allegiance to His Majesty King Edward the Seventh. So help me God!
FORM OF OATH OF OFFICE.
..........do promise and swear that I will faithfully and diligently execute to the best of my abilities the several duties of the office of Resident Magistrate. So help me God!
1. There shall be appointed to every Court of Resident Magistrate so many Officers to be Clerks of the Court as may be found necessary, and also an officer who shall be styled Messenger of the Court, each of whom shall upon entering into his office take an oath for the faithful performance of his duty in the form following:
FORM OF OATH OF CLERK OF THE COURT.
I., A.B., do swear that I will truly and faithfully execute the office of Clerk of this Court without fear, favour or affection for any one, and that I will not by myself or any other receive or take for my own use any fee or reward for anything done by me in my said office; and that I will not take or permit or suffer any person under me to take any other than such lawful fees, as I shall be instructed to take or to permit to be taken in my said office; and for all such I will duly and faithfully account to whomsoever and whensoever I am thereto required. So help me God!
FORM OF OATH OF MESSENGER OF THE COURT.
I, A.B., do swear that faithfully and diligently I will serve the office of Messenger of this Court, and execute all summonses and process thereof without favour or affection for any one, and that I will not by myself or any other take, receive, or demand any other than such lawful fees as I may be permitted by this Court to receive for anything done by me in my said office. So help me God!
3. The said Messenger shall give security to the satisfaction of the Resident Magistrate for the due fulfilment of the duties of his office, and for the due and punctual payment by him to the parties entitled thereto of all moneys which shall come into his hands by virtue of his office.
2. The Clerk of the Court, as also the Messenger of the Court, may in addition to the duties specially imposed upon them by these of officers. rules be charged with such further and additional duties as the Legal Adviser to the Transvaal Administration or the Resident Magistrate may deem fit.
Proc. No. 21 of 1902.
5. All civil process of the said Court may be ed out by any person having any demand or matter of complaint against any other person within the jurisdiction of the Court, and the said process shall be dated on the day on which it is issued, and shall be made returnable by the Messenger to the Court through the Clerk of the Court, and the said process shall be signed by the Clerk of the Court and issued by him, and shall be endorsed with the name and address of the party or Agent suing out the same.
Officers of Court.
6. The process of the Court of Resident Magistrate for sum moning any person as defendant in any civil suit or action shall be by summons, and shall call upon such person to appear before the Court with his witnesses (if he have any) on a certain day; and shall contain a concise and succinct statement of the nature of the
4. The Clerk of the Court shall keep a book, to be called the Civil Record Book, wherein he shall note (in the manner as shown to be kept. in Schedule "C" hereunto annexed) the names of the parties, the nature of the plaint, the date of the summons, the date of appearance of parties, and by whom appearance, made, the nature of the defence, the day of hearing and the judgment or sentence of the Court.
Security by Messenger.
Civil Record Book
Mode of civil process-issue.
Form of summons.
plaint and the claim. And the said summons shall be as near as
Court of the Resident Magistrate
To the Messenger of the Court..
Summon C.D., of (describing him so particularly that the officer of the Court may know where to find him) hereinafter called "The Defendant" that he appear before the Court of the Resident Magistrate of this district to be holden at.. ..on the...............day of.... .....next at.........of the clock in the forenoon with his witnesses if he have any to answer A.B. of..... hereinafter called "The Plaintiff" who complains and says (set out the nature of the plaint).
Wherefore the plaintiff claims (state what the claim is).
And serve on the said defendant a copy of this summons (and where the action is founded on any document or on an account a copy of the said document or account).
And return you on that day to the said Court what you have done on this
7. Where the party against whom any summons or other process of the said Court is issued resides at a distance from the place where the said Court is holden, or where, from the number of such summonses or other process, the said Messenger cannot possibly serve or execute the same, the said summonses or other process may be served or executed by his sufficient deputy (to be first approved of as such by the Resident Magistrate) who shall be paid by the said Messenger and for whom he shall be responsible.
8. A copy of the said summons together with copies of any documents or account upon which the said complaint or demand is founded shall be delivered to the Messenger with the said summons and shall be served either personally on the said defendant, or left for him at his dwelling house with someone of his household, or in case neither the defendant nor anyone of his household can be found after diligent search at his usual or last known dwelling house or place of business, by affixing the same to the outer or principal door of such dwelling house or place of business at least forty-eight hours before the time therein specified for his appearance, where the party summoned lives within five miles of the place of holding the said Court, three days where the said party lives at a greater distance than five miles and not exceeding ten miles, and so on one day in addition to forty-eight hours for every ten miles of distance at which the party summoned lives from the place of holding the said Court. But no case shall be dismissed for or on account of the omission to deliver the copy of any such document or account as aforesaid in case it shall appear to the Court that such omission has not in fact and in truth prejudiced the defendant in respect of his defence.
9. If the person who is summoned has chosen domicilium citandi within the town or the village where the Court is to sit the service of the summons may be effected at the domicile so chosen.
10. Where two or more persons or members of a syndicate are cited together in one summons the same shall be served on each of them in the manner hereinbefore set out, save and except in the case of married persons not separated either a mensa et thoro or in
respect of their goods and in the cases in the next succeeding section mentioned. When the names and addresses of the members of a syndicate are unknown to the plaintiff and the secretary, manager, or any member thereof to whom the names and addresses of the remaining members are known refuses to give the plaintiff information with reference thereto, it shall be competent for the Court to order such secretary, manager, or member to furnish the plaintiff with a list of the names and addresses of the members of such syndicate.*
11. In the following cases the service of the summons shall be effected as follows:
(b) When directed against two or more persons who are partners
(c) When directed against two or more persons who are trustees
(a) When directed against a corporation or incorporated or trustee of insol-
13. The Messenger of the Court shall endorse or annex to the summons the manner of his executing the same, and shall return the said summons to the Clerk of the Court.
Proc. No. 21 of 1902.
Service not to be
12. No service of any process, order, notice, or proceeding, or any act done in any civil action, except the case of arrest, shall be effected on Sunday. valid or effectual if performed on a Sunday. But all process returnable on a Sunday or upon a holiday shall be returned on the following day; and any act required to be done by any party in Court, at a time which would otherwise fall on a Sunday or holiday, shall be valid and effectual if done on the following day.
14. It shall be permitted to any plaintiff or defendant in the said Court to appear and conduct his case by means of any person authorised by Power of Attorney under his hand to be filed with the Clerk of the Court; and when it shall be made to appear to the satisfaction of such Court, that, by reason of the absence from home of defendant, such Power of Attorney could not be obtained, then it shall be permitted to any one of his family, or any one having a general authority to manage his affairs in his absence and willing to conduct the said case to appear for the defendant and conduct the same. But nothing shall in the taxation of costs against either party be allowed for the attendance or services of any person not being enrolled in such Court to practise as an agent therein, and not being an Attorney of the Court of the Transvaal. And every such Court of Resident Magistrate, upon being satisfied that any person who appears to have a right of action, is from poverty unable to sue out, the process of such Court may order all such process to issue without fee or charges, and may appoint an Attorney or Agent to act for such person. Provided always, that such person, should he recover and receive sufficient from the other party, shall be liable to pay and make good all fees and charges so remitted.
15. On the Court day appointed for appearance of the parties, unless the said summons shall have been withdrawn, the Clerk of the Court shall cause the said parties, plaintiff and defendant, to be
Service on a corporation, partnership,
For powers of enforcing such an order by committal for contempt of Court, see Ord. 36 of 1903.
Endorsement of summons by mes
Conduct of case by any person duly ap pointed by plaintiff