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Courts hereby to be created.

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112 CAPE OF GOOD HOPE [1828

XII. And whereas by virtue of certain Proclamations and
Ordinances enacted in times past, certain Crimes and Offences
therein set forth, had been made cognizable by the said Courts
of Landdrost and Heemraden, and of Landdrost and Com-
missioned Heemraden, and by the Courts of Deputy landdrost
and Heemraden, and Deputy Landdrost and Commissioned
Heemraden, and by the Courts of Residents at Simon's Town,
Port Elizabeth, and Port Frances : Be it therefore enacted,
that from and after the first day of January 1828, all such
Crimes and Offences as are now by any fecial Law or Ordi-
nance cognizable respectively, by any of the Courts hereby
to be abolished, shall become cognizable by the Courts hereby
to be created : Provided always, that such Crimes and
Offences shall not be punishable by Death, Transportation,
or Banishment from the Colony.

Schedule.

Form of the Oath of Allbgunce.

I, A. B., do sincerely promise and swear, that I will be faith-
ful, and hear true Allegiance to His Majesty King George. So
help me God!

Form of the Oath of Office.

I, A, B,, do promise and swear, that I will faithfully and
diligently execute, to the utmost of my Abilities, the several
Duties of the Office of Resident Magistrate which has been con-
ferred upon me. So help me God !

God Save the King.

P.R.O,, CO, 50/1.



THE SHERIFF OF THE CAPE COLONY.
[5 Jan. 1828.]

No. 37.1

Ho. 74. Ordinance. — Of His Honour the Lieutenant-Gover-
nor IN Council, for declaring and regulating the Duty
of the Sheriff of this Colony.

[Extraa,}

And whereas it is by the . . . Charter [of Justice, dated
24th August 1827] ordered, directed, and appointed, that the
. . . Sheriff shall, by himself, or his sufficient Deputies to be
by him appointed and duly authorised under his Hand and
Seal, and for whom he shall be re^nsible during his con-
tinuance in such Office, execute all Sentences, Decrees, Judg-
ments, Writs, Summonses, Rules, Orders, Warrants, Commands,

I Of. Act No. i; of i88[6, below.



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1828I COURTS OF JUSTICE 113

and Processes, of the Supreme Court, or of the Circuit Courts
of the said Colony, as therein is mentioned, and shall make a
Return of the same, together with the manner of the execution
thereof, to the Supreme Court of the Cape of Good Hope, or
to the . . . Circuit Courts, as the case may be ; and shall
receive and detain in Prison all such Persons as shall be com-
mitted to the custody of such Sheriff, by the said Supreme
Court and Circuit Courts, or by the Chief Justice, or any other
Judge of the said- Courts : ... Be it therefore enacted and
declared, by His Honour the Lieutenant-Governor in Council,
that the said Sheriff shall, immediately after his Appointment,
and after having taken the Oaths [prescribed], appoint and
depute sufficient Persons and Deputies, to act for him in the
execution of the Duties of his said Ofl&ce, and shall, immedi-
ately after such Appointment, cause to be enrolled in the
Office of the Registrar of the Supreme Court, the Names and
Places of Abode of such his lawful Dei>uties, and which enrol-
ment shall specify the District within which they are re-
spectively to act for the said Sheriff ; . . .

P./?.0., CO. 50/1.



QUALIFICATION OF JURORS. [4 Feb. 1828.]

No. 41.

■o. 76. Ordinance. — Of His Honour the Lieutenant-Gover-
nor IN Council, for determining the Qualification of
Persons liable to serve on Grand and Petit Juries, and
the mode of making out and returning Lists of the same.

... Be It Enacted, ... That from and after the passing

of this Ordinance, every Man, excq)t as hereinafter excepted,^

between the Ages of Twenty-one Years and Sixty Years,

residing within the Colony and its Dependencies, who shadl

have the possession of any Land situated within this Colony,

held on Perpetual Quitrent, or on Loan, and for which he is

Uable to pay an annual Rent of not less than One Pound

Seventeen Shillings and Sixpence, Sterling; or of Freehold

Land of the same annual value ; or who shall be liable to pay

in Cape Town and the District thereof, a sum of not less tnan

Twenty Shillings Sterling, and in any and every other part of

the Colony, a sum not less than Fifteen Shillings Sterhng, for

or on account of Taxes already imposed, or hereafter to be

imposed by any Law or Ordinance, shall be qualified, and

shfiul be liable, to serve on Juries, in all Criminal Cases, in the

* Judges, c]erg3aneD. attorneys, officers of any of the courts of law,
physicians, surgeons, apothecaries, and generally men holding offices under the
Gov



overnment are excepted.
8



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114 CAPE OF GOOD HOPE [1832

Supreme and Circuit Courts ; such Cases being triable in the
District respectively in which every Man so qualified shall
reside.

P.R.O., CO. 50/1,



Ho. 7«. THE ROYAL CHARTER OF JUSTICE.^

[4 May 1832.]

For the better and more effectual Administration of

Justice within the Colony of the Cape of Good

Hope.
William the Fourth, ty the Grace of God, of the United

Kingdom of Great Britain and Ireland, King, Defender of

the Faith,
To All to Whom these Presents shall come.
Greeting :

Whereas it is expedient to make provision for the better
and more effectual Administration of Justice in Our Colony
of the Cape of Good Hope, and in the several Territories and
Settlements dependent thereupon, and for that purpose to
constitute within Our said Colony and its Dependencies
One Supreme Court of Justice, to be holden in the manner
and form hereinafter mentioned: Now Know Ye, that
We, of Our Special Grace, certain Knowledge, and mere
Motion, Have thought fit to grant, direct, order, and appoint,
and by these Presents Do accordingly for Us, Our Heirs and
Successors, grant, direct, order, and appoint, that there shaU
be within Our said Colony of the Cape of Good Hope, a Court
which shall be caUed " The Supreme Court of the Colony
OF the Cape of Good Hope."

11. And We Do hereby create, erect, and constitute the
said Supreme Court to be a Court of Record.

in. And We Do further will, ordain, and appoint, that
the said Supreme Court of the Colony of the Cape of Good
Hope, shall consist of and be holden by and before one Chief
Justice and two Puisne Judges, and that the said Chief Justice
shaU be called and known by the name and style of the Chief
Justice of the Colony of the Cape of Good Hope, and which
said Chief Justice and Puisne Judges shall be respectively
Barristers in England or Ireland, or Advocates admitted to
practice in Our Courts of Session in Scotland, or in the said
Supreme Court. And which said Chief Justice and Puisne

* Issued at the Cape by Governor D' Urban 's Proclamation, dated 13 Feb.
1834. It should be compared with the 1827 Charter of Justice which it
superseded. There are but few important differences between the two
instruments.



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1832] COURTS OF JUSTICE 115

Judges shall, from time to time, be nominated and appointed
to such their Offices by Us, Our Heirs and Successors, by Letters
Patent under the Public Seal of the said Colony, to be issued
in pursuance of any Warrants or Warrant to be from time to
time for that purpose granted by Us, Our Heirs, and Successors,
under Our or Their Sign Manual.

IV. [If a judge's seat becomes vacant the Governor shall
make a temporary appointment.]

V. [Judges to hold office during good bdiaviour. On
proof of misconduct. Governor and Council may suspend any
one of the judges, but must report to the Secretary of State.]

VI. [The Crown reserves power to confirm or disallow
such suspension: Crown also reserves power, upon sufficient
proof of misconduct, to suspend any judge.]

VII. [Chief Justice to have precedence next after the
Governor, Lieutenant-Governor, and Commander-in-Chief.]

VIII. [Puisne Judges to rank next jrfter the Chief Justice.]

IX. [Puisne Judges to take rank between themselves
according to priority of appointment.]

X. [Supreme Court to have and use a Seal.]

XI. [Seal to be kept by the Chief Justice.]

XII. [Each of the judges to receive a salary, beyond which
no fees or emoluments may be accepted.]

XIII.* [No judge to accept any other office or place of
profit in the Colony.]

XIV. [To the Supreme Court shall be attached the
office of Registrar or Prothonotary and Keeper of Records,
and the office of Master of the Supreme Court. Minor offices
to be created by Chief Justice.]

XV. [The R^istrar and the Master to be appointed by
the Crown ; minor officers to be appointed by the Grovemor.]

XVI. [All officers, except the judges, to hold office during
the royal pleasure.]

XVII.-XVIII. [Admission of Barristers or Advocates.]
XIX.-XXIV. [Admission of Attorneys or Solicitors.]
! XXV. [Governor shall annually in January appoint a
Sheriff, who shall take the oath of office and the oath of
allegiance.]

XXVI. [Sheriff to hold office for one year.]

XXVII. [Sheriff and his deputies appointed by him shall
execute all sentences, warrants, decrees, etc., of the Supreme
Court and of Circuit Courts ; and shall detain in prison persons
committed by the said Courts or by any of the judges.]

XXVIII. [Sheriff may be reappointed by the Governor.]

XXIX. [If the Sheriff or his near relative is involved in a
case, then the court shall appoint a substitute.]

^ Amended by Act No. 35 of 1904.

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ii6 CAPE OF GOOD HOPE [1832

XXX. And We Do hereby further ordain, direct, and
appoint, that the said Supreme Court . . . shall have Cogniz-
ance of all Pleas, and Jurisdiction in all Causes, whether Civil,
Criminal, or Mixed, arising within the said Colony, with Juris-
diction over Our Subjects, and all other Persons whomsoever
residing and being within the said Colony, in as full and ample
a manner and to all intents and purposes, as the Supreme
Court of Justice now existing within the said Colony now hath
or can lawfully exercise the same.

XXXI. (Supreme Court to judge according to laws now in
force or hereafter to be made.]

XXXII. And We Do Further Give and Grant to the
said Supreme Court, full Power, Jurisdiction, and Authority,
to review the Proceedings of all Inferior Courts of Justice
within Our said Colony, and, if necessary, to set aside or correct
the same ; and in the exercise of such Jurisdiction, Powers, and
Authorities as aforesaid. Our Will and Pleasure is, that the
Pleadings and Proceedings of the said Supreme Court and the
Circuit Courts shall be carried on, and the Sentences, Decrees,
Judgments, and Orders thereof pronounced and declared, in
open Court, and not otherwise, and that the several Pleadings
and Proceedings of the said Court shall be in the English
Language ; and that in all Criminal Cases, the Witnesses
against and for any accused Person or Persons shall deliver
their Evidence viva voce, and in open Court.

XXXIII. [In civU cases, two judges to form a quorum.
If such two judges differ in a case, it shall be postponed till a
third judge diall be present, when the decision shall be accord-
ing to the cminion of the majority.]

XXXIV. [Criminal cases to be tried before one or more
of the judges and a jury of nine men, who shall concur in every
verdict. No person otherwise competent to serve on a jury
shall be disqualified by reason of his ignorance of the English
Language.]

XXXV. [Duties heretofore performed by the Orphan
Chamber, to be performed by tiie Master of the Supreme
Court. Orphan Chamber abolished.]

XXXVI. [Supreme Court to be held at Cape Town.]

XXXVII. [Governor to divide the Colony into convenient
districts for holding Circuit Courts.]

XXXVIII. [Circuit Courts to be held in each district by
one judge at least twice a year.]

XXXIX. [Circuit Courts to have the same jurisdiction and
authority as the Supreme Court. Criminal cases to be tried by
circuit judge and a jury of nine. No person to be disqualified
from serving on a jury merely by reason of his ignorance of
the English Language.]



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i832] COURTS OF JUSTICE 117

XL. [If nine men do not appear to try criminal cases the
juiy may consist of any number not less than six.]

XLI. [Civil suits to be tried by a judge unassisted by a
jury. In such suits, if the sum or matter in dispute shall
equal or exceed £100, all evidence diall be taken down in
writing. If an appeal is allowed, copies of documents shall be
made and duly certified.]

XLII. [In civil suits involving less than /loo, appeals
may be allowed at the discretion of the circuit judge.]

XLIII. [In cases involving more than £100, appeals may
be made to the Supreme Court.]

XLIV. [Any Court before which a case may be pending
may transfer that case to another Court.]

XLV. fin criminal cases no sentence whereby a person
shall be condemned tp death or transportation or banish-
ment from the Colony shall be carriM out until the ex-
ecution of the sentence shall have been approved by the
Governor.]

XL VI. [Rules of Court to be framed by the Supreme Court
and to be, as far as the circumstances of the Colony will permit,
in accordance with the rules and forms in use in the Courts at
Westminster.]

XLVII. [Rules and laws governing the qualification and
attendance of jurors, to be framed by the Governor with the
advice of the Legislative Council, subject to the approval or
disallowance of tiie Crown.]

XLVIII. And Whereas it may be expedient to establish
within our said Colony Courts of Request, and other Courts
having Jurisdiction in Civil Cases of small amount or value, —
and in cases of Crimes or Offences not punishable by Death
or Transportation : Now We Do hereby authorize and em-
power the Governor, for the time being, of Our said Colony,
with the advice of the L^islative Council of Government
thereof, by any Laws and Ordinances to be from time to time
made for that purpose, to erect, constitute, and establish all
such Courts of Request, and other Courts having Jurisdiction in
Civil and Criminal Cases, within Our said Colony : Provided
that the Jurisdiction of such Civil Courts diall not be extended
to any Case, wherein the Sum or Matter in dispute shall exceed
the amount or value of Forty Pounds Sterling Money : or
herein the Title to any Lands or Tenements, or any Fee,
Duty, or Ofl&ce may be in question ; or whereby Rights in
future may be bound : And provided also, that the Jurisdic-
tion of such Courts, in Criminal Cases, shall not be extended
to any Case wherein any Person may be accused of any Crime
punidfiable by Death, Transportation, or Banishment from the
said Colony.

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ii8 CAPE OF GOOD HOPE [1832

XLIX. [Supreme Court to frame rules and order for Courts
of Request.]

L. [Appeals to the Crown in CouncU may be made from
final sentences, etc. of the Supreme Court, if a case involves an
amount exceeding £500 and if Supreme Court allows such
appeals.]

LI. [Crown in Council reserves the right to allow and hear
appeals upon petition made.]

LII. [Supreme Court shaD execute all judgments in appeal
pronounced by the Crown in Council.]

LIII. [All Governors, commanders, magistrates, etc. are
charged to assist in the execution of all powers hereby granted.]

LIV. [Crown in Council reserves the power to repeal or
amend this Charter of Justice.

Letters Patent of 24 August 1827 revoked.]

LV. And We do further ordain and direct, that the Gover-
nor of Our said Colony of the Cape of Good Hope, upon the
arrival therein of these Presents, shall, by Proclamation,
notify to the Inhabitants of the said Colony, the time when
the Courts hereby established will be open ; and as soon as the
Judges of the said Supreme Court diall have assumed and
entered upon the exercise of their Jurisdiction therein, then,
and from thenceforth, the Supreme Court of the Colony of the
Cape of Good Hope and the Circuit Courts now established
within the same, and the Jurisdiction of the said Courts re-
spectively, diall be absolutely abolished, cease, and determine ;
and every Suit, Action, Complaint, Matter, or Thing, Civil or
Criminal, which shall be depending in such last-mentioned
Courts respectively, shall and may be jjroceeded upon in the
Supreme Court instituted under and by virtue of these Presents,
or in either of the said Circuit Courts, which shall and may
have Jurisdiction within the District or Place in the Colony
of the Cape of Good Hope, where such Action or Suit, or other
Matter, Civil or Crimmsd respectively, shall be conducted
in like manner, as if such Action or Suit, or other Matter,
Civil or Criminal, had been originally commenced in one or
other of the said Courts instituted under these Presents. And
all the Records, Muniments, and Proceedings whatsoever of
and belonging to the said Supreme Court and Circuit Courts
established by the said recited Letters Patent, shall from and
immediately after the opening of the said Courts respectively
instituted by these Presents, be delivered over and deposited
for safe custody in such of the said Courts respectively insti-
tuted under these Presents, as shall be found most convenient ;
and all Parties concerned shall and may have recourse to the
said Records and Proceedings, as to any other Records or Pro-
ceedings of the said Courts respectively.



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1843] COURTS OF JUSTICE 119

LVI. And We Do hereby further declare and direct, that
during the absence from Our said Colony of the Cape of Good
Hope of the Governor thereof, or if there shall be no person
commissioned by Us, Our Heirs and Successors, to be the
Governor of Our said Colony, then, and in every such case,
all and every the Powers hereby granted to and vested in the
Governor for the time being of th6 said Colony, shall and may
be executed by and vested in the Lieutenant-Govempr thereof,
or the OflScer for the time being administering the Government
thereof.

In Witness whereof, We have caused these Our Letters to
be made Patent. Witness Ourself at Westminster, the Fourth
Day of May, in the Second Year of Our Reign.
By Writ of Privy Seal.

Bathurst.
P,R.O„ CO. 52/6 (C. o/G, Hope Govt. GazeUe,
14 Feb. 1834).



ADMINISTRATION OF INSOLVENT ESTATES.
[24 Oct. 1843.]

No. 6, 1843.

■d. 77. Ordinance. — Enacted by the Governor of the Cape
OF Good Hope, with the advice and consent of the Legis-
lative Council thereof, for Regulating the due Collection,
Administration, and Distribution of Insolvent Estates
within this Colony.

Whereas the Law as contained in the Ordinance No. 64,
bearing date the 6th of August 1829, ^^^ intituled " An
Ordinance for regulating the due collection, administration,
and distribution of Insolvent Estates within this Colony,"
requires certain additions and alterations : And whereas it is
expedient, in order that the said additions and alterations may
most conveniently be made, that the said Ordinance No. 64
should be repealed, and a new Ordinance enacted in its stead :
And whereas it is also expedient, that all Insolvent Estates
within this Colony should be, hereafter, administered under one
uniform system of law, and, to that end, that the benefit or
relief of cession of goods and property, commonly called the
cessio bonorum, now available to insolvent debtors in this
Colony, should be abolished : Be it therefore enacted by the
Governor of the Cape of Good Hope, by and with the advice and
consent of the Legislative Council thereof, that from and after
the passing of this Ordinance, the Ordinance aforesaid No. 64,
and the Publication of the 4th September 1805, respecting
transfers, cessions, pledges, and other secvirities entered into



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120 CAPE OF GOOD HOPE [1848

by debtors within twenty-eight days previous to their in-
solvency, and so much of Ordinance No. 5, 1842, intituled,
" an Ordinance to provide for the lodgment elsewhere than in
the Government Discount Bank of this Colony, of certain
Monies, now by law required to be lodged in the said Bank,"
as is, in substance, hereinafter set forth and re-enacted, — and
all laws and customs heretofore in force within this Colony,
in so far as the same are repugnant to, or inconsistent with,
any of the provisions of this Ordinance, shall be, and the same
are hereby, respectively repealed. . . .

II. And be it enacted, that it shall and may be lawful for
the supreme court, or any circuit court, or for tiie chief justice
of this colony, or any other of the judges of the supreme court,
upon the petition, in writing, of any person, setting forth that
he is insolvent, and desirous of surrendering his estate for the
benefit of his creditors, to direct such person to appear before
him, to be examined touching his said msolvency, or to require
such other proof thereof, by aflftdavits of the said insolvent
and others, as to the said court or the said judge may seem
fit; . . .

V. And be it enacted, that it shall and may be lawful
for the supreme or any circuit court, or for the chief justice of
this colony, or any other of the judges of the supreme court,
upon petition made in writing against anv person having
committed any act of insolvency, ... to place the estate of
every such person or persons under sequestration, in the
hands of the master of the said court, until the same shall . . .
be adjudged to be sequestrated, or the said petition shall be
discharged.

[Etc.]

P,R.O., CO, 50/1.



DUTIES OF FIELD-CORNETS. [4 July 1848.]

No. 9, 1848.

No. 78. Ordinance. — Enacted by the Governor of the
Colony of the Cape of Good Hope, with the advice
and consent of the LEGiSLATrvE Council thereof, for
regulating the Duties and Remuneration of Field-Comets.

Whereas, owing to the various alterations made from
time to time, in the administration of the country districts of
this colony, the functions of field-comets have been consider-
ably narrowed ; and it is now expedient to define or describe
their duties, and to substitute tor the principle of a fixed
annual allowance, a remuneration proportioned to the services
performed : Be it enacted by the Governor of the Cape of



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1848] COURTS OF JUSTICE 121

Good Hope, with the advice and consent of the Legislative
Council thereof, that the " Instructions of the Field-Cornets in
the several Country Districts," published by the then Governor
and Council of this Colony on the 24th October 1805, shall be
rq)ealed, except in so far as the same repeal any former
placards, ordinances, or aistoms, and the same are hereby
repealed accordingly. Provided always, that the field-comets
and assistant field-comets shall continue to be appointed as at
present.

2. And be it enacted, that from and after the commence-
ment and taking effect of this Ordinance, the several duties
belonging to the office of field-comet shall be the following, that
is to say, —

(a) He is, by virtue of his office, bound to apprehend
without warrant, every person whom he shall
have reasonable grounds to suspect of having
committed any murder, culpable nomicide, rape,
robbery, or assault with intent to commit any of
those crimes, or assault in which a dangerous
wound is given, arson, housebreaking with
intent to commit a crime therein ; or theft
of any cattle, sheep, or goat ; or any other crimes
of equal guilt with any of those crimes. And
he may also take into custody every person whom
he shall see engaged in any affray, or whom he
shall find attempting to commit a crime, or
already manifesting an intention so to do.
(6) Whenever it shall be brought to his knowledge
that any person, within his ward, has died other
than a natural death, namely by violence or
accident, or his own act, or the act of God, the
field-comet shall, with all speed, repair to inspect
the body, and hold an inquest thereon.
(c) The field-cornet will obtain and transmit to the
resident magistrate the fullest information re-
specting the circumstances of any such untimely
death, and communicate, at the same time, the
result of his own observations.
{d) In cases of assault in which any wound, supposed to
be dangerous, has been given, the field-comet
will repair to and examine the injured party,
and apprise the resident magistrate of the case
and its circumstances. . . .

3. [Remuneration of Field-Comets according to the time
spent in p)erfonning their duties.]

4. And be it enacted, that from henceforth, the field-
comets sh^U be deemed and taken to be under the authority



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122 CAPE OF GOOD HOPE [1854

of the resident magistrate of the district, as weU as of the
civil commissioner of the division.



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