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5. [This Ordinance not to affect former laws imposing
duties on Field-Comets.]

6. [Ordinance to take effect from i Jan. 1849.]

P.R,0., CO. 50/2.



TRIAL BY JURY IN CIVIL CASES, 1854.

I reserve this Bill for the signification of Her Majesty's
pleasure.
(Signed) C. H. Darling, Lt.-Governar.
26ih Sept 1854. :

No. 7, 1854.^

Ho. 79. A Bill for Extending Trial by Jury to Civil Cases.

Whereas it is expedient that Trial by Jury in Civil Cases
should be introduced into this Colony : And whereas it is
fitting that Trial by Jury in Civil Cases should, in the first
instance, be limited to Civil Cases depending in the Supreme
Court : Be it enacted by the Governor of the Cape of Grood
Hope, with the Advice and Consent of the Legislative Council
and House of Assembly thereof, as follows :

I. So much, if any, of the Letters Patent of His late
Majesty King William the Fourth, bearing date at Westminster,
the Fourth Day of May, in the second Year of his Reign, and
commonly called the Charter of Justice," and so much, if
any, of any other Law or Ordinance heretofore existing in this
Colony, as shall be repugnant or inconsistent with any of the
Provisions of this Act, shall be repealed, and the same is
hereby repealed accordingly.

II. From and after the commencement of this Act, every
Question, or Matter of Fact, or of mixed Law and Fact, in
dispute between the Parties to any Civil Case depending in
the Supreme Court of this Colony shall, except as is herein-
after in the 4th Section provided, be tried by Jury.

III. No Question which shall be a pure and unmixed
Question of Law shall be, at any time, or in any case, referred
or submitted to a Jury, but every such Question shall be
reserved for the determination of the Court.

IV. It shall be competent for the Attorney of either of the
Parties to any Civil Case depending in the Supreme Court,
at any time after the Pleadings in such Case shall have been
closed, to serve a Notice upon the Attorney of the opposite
Party, calling upon him to attend before a Judge of the Supreme

» Superseded by Act No. 23 of 1891. Ct Nos. 142 and 164,



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i854] COURTS OF JUSTICE 123

Court in Chamber, at some time, to be specified in such Notice,
there to settle the Issue or Issues to be tried by Jury : Pro-
vided that it shall be competent for the Parties to any such
Case, at any time after Pleadings closed, and before the serving
by either of them of such Notice as aforesaid, to agree together,
in writing, signed by their respective Attorneys, that such
Case shallbe tried without a Jury, and, thereupon, such Case
shall be proceeded with, and be tried in like manner precisely
as if this Act never had been passed : Provided, nowever,
that as often as any Facts in dispute in any Case shall be tried
by Jury, then all Facts in dispute in the same Case diall be
tried by Jurv.

V. The issue or Issues in any such Case as aforesaid, to
be tried by Jury, shall, as much as may be, be settled and
framed, so as to present separately and successively, and in
plain and precise Language, every Matter of Fact affirmed by
one Party m the Suit, and denied by the other : Provided that
no Issue shall be settled or framed in regard to any Matter
or Question not arising upon the Pleadings as pleaded, unless
both Parties shall consent thereto, in which Case the Pleadings
shall be thereupon amended in such Manner as to put in
Issue such Matter or Question.

VI. Whenever, in any Matter or Question which is, in
Law, a Matter or Question of Mixed Law and Fact, the Fact
shall, in contemjjlation of Law, be capable of being separated
from the Law with which it is mixea, and both Parties shall
desire the separation, in the Issues, of the Fact from the
Law ; such separation may, should the Judge see fit, be made
in such manner that the Fact alone shall be submitted to the
Jury, and the Law connected therewith shall be reserved for
the Court.

VII. As often as any Issue shall be settled or framed for
trial by Jury in any Case, in regard to which or the Matter
of which either Party shall claim that the other Party may
be condemned in Damages, then the Issues in such a Case
shall be so settled and framed as to authorize and require the
Jury, in case they shall find for the Party claiming such
Damages, to assess the said Damages.

VIII. Either Party to any such Case as aforesaid, who
shall, before the Judge in Chamber, have objected to the
form or substance of any Issue approved of by the said Judge,
or who shall, before such Judge, have desired the admission
of some Issue which the said Judge shall have refused to
admit, may, upon Notice to the opposite Party, move the
Supreme Court to review the Decidon of the Judge in Chamber
regarding aw such Issue ; and thereupon such Court shall
make §uch Order in the Matter, as Justice shall seem to

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124 CAPE OF GOOD HOPE [1854

require : Provided that any Judge before whom, in Chamber,
the settlement of the Issues in any Case shall come, may, of
his own Motion, refer the settlement of such Issues, or of any
of them, to the Supreme Court, and thereupon such Court
shall, after hearing the Parties, settle the same.

IX. As soon as may be after the Issue or Issues in any such
Case as aforesaid shaU have been settled and framed, the same
shall be fairly and correctly engrossed by the Attorney, who
shaU have served the Notice, in the Fourth Section mentioned,
to attend before a Judge in Chamber, and such Attorney shall
carry the said Issue or Issues, so engrossed, to the Judge
before whom, in Chamber, the same shall have been settled,
and such Judge shall sign the Engrossment thereof, and
thereupon such Attorney shall lodge such Engrossment with
the Registrar of the Supreme Court : Provided that as often
as all or any of the Issues in any Case shall be finally deter-
mined, not by the Judge, but by the Court, then all the Issues
in such Case, after bein^ engrossed as aforesaid, shall be signed
by the Registrar aforesaid, and not by any Judge.

X. [Certain days shall be set apart for Trials by Jury in
the Supreme Court.]

XI. All Trials by Jury in the Supreme Court shall be had
before the Chief Justice of the said court, or before any other
of the Judges thereof, and a Jury of Nine Men.

XII. [Cases shall be set down for trial at least 14 days
before the day on which they are to be tried.]

XIII. [The Registrar of the Supreme Court shall give
notice to the Sheriff that a Jury will be required.]

XIV. [The Sheriff shall then summon 36 jurors of those
liable to serve in criminal cases.]

XV. [The manner of summoning jurors to try civil cases
shall be the same as for those summoned to try criminal cases.]

XVI. [Persons who do not appear after having been
summoned to serve as jurors, shall be liable to a fine not
exceeding £2f).]

XVII. [If such fine remains unpaid, execution maybe sued
out by the Attorney-General for the recovery thereof.]

XVIII. [Each of the Parties to a case may strike out from
the list of 36 jurors the names of o jurors. From the names
remaining, g jurors shall be selected by lot.]

XIX. [If more cases than one are set down for trial on
the same day, then the Parties to each case shall successively
have the right to strike out 9 names from the list of jurors.]

XXII. No Challenge to any Man, drawn as aforesaid, to
serve as a Juror, sh^ be allowed, except a Challenge for
Cause, and that the Causes for which any such Juror may be
challenged, and the manner and form of trying the existence



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1856] COURTS OF JUSTICE 125

of any Cause of Challenge alleged against any such Juror,
shall be the same, in all respects, as would, by Law, be per-
mitted or prescribed in a Civil Case depending, and about
to be tried, in one of Her Majesty's Courts of Record at
Westminster.

XXIII. prhe presiding Judge shall administer an oath to
the Jmy.l

XXIV. [When the Judge shall have sununed up the
evidence in a case, the Jury may withdraw to consider their
Verdict.]

XXV. It shall not be competent for any Jury to deliver
their Verdict up>on any one or more of the Issues left to them,
if more than one, unless they shall at the same time deliver
their Verdict on all the Issues so left to them.

XXVI. No fewer than Six Jurors of the Nine Jurors com-
posing the Jury must concur in every Verdict of such Jury,
and every Verdict in which not fewer than Six Jurors of the
Nine Jurors, composing the Jury, shaU concur, shall be received
and regarded as the Verdict of such Jury : Provided that no
Verdict except one in which the whole of the Jurors composing
the Jury diall concur, shall be capable of being delivered or
received until after the Jury shall have been in deliberation
upon their Verdict for not less than One Hour.

XXVII. [The Judge may adjourn the Court from time to
time and the Jurors shall be bound to attend on the resumption
of the Court's business after adjournment.]

XXVIII. [The Verdict of the Jury may be either a general
Verdict or a special Verdict.]

XL. [Appalls to Her Majesty in Her Privy Council allowed.]
XLIII. This Act shall commence and take effect from and
after the promulgation thereof. P.R,0., CO. 50/3.

RESIDENT MAGISTRATES. [4 June 1856.]

No. 20 of 1856.

16. 80. i4n Act, — For amending and consolidating the Laws

relative to the Courts of Resident Magistrates.

Whereas it is expedient to amend and consolidate the

laws relative to the courts, jurisdiction, powers, and duties

of the resident magistrates within the colony : Be it therefore

enacted by the Governor of the Cape of Good Hope, with the

advice and consent of the Legislative Council and House of

Assembly thereof, as follows :

I. Courts of resident magistrates ^ shall be, and the same

^The attainments required of magistrates as regards education and
experience, as also the qualifications demanded for other civil servants, are
aet forth in Act No. 33 of 1895, not printed in this volume.



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126 CAPE OF GOOD HOPE [1856

axe hereby declared to be, erected, constituted, and established
for and within each of the followinff districts, that is to say, —
Cape Town and the district thereof, Wynberg, Simon's Town,
Malmesbury, Piketberg, Stdlenbosch, the Paarl, Worcester,
Tulbagh, Clanwilliam, Swellendam, Riversdale, Caledon,
Beaufort, George, Aliwal, Uitenhage, Port Elizabeth, Albany,
Fort Beaufort, Bathurst, Stockenstrom, Somerset, Victoria,
Fort Peddie, Albert, Queenstown, Graafl-Reinet, Richmond,
Cradock, Colesberg, East London, Alexandria, Prince Albert.
Victoria (West), Bredasdorp, Calvinia, Middelburg, Aliwal
(North), Oudtshoom, and Namaqualand ; and the said
courts shall be respectively holden by and before the resident
magistrates for the districts aforesaid.

1 1. -IV. [Establishment of courts and the limits of magis-
tracies by proclamation.]

V. [Resident magistrates to be appointed by the Governor.]

VII. The courts of the resident magistrates aforesaid shall
be respectively courts of record, and me pleadings and pro-
ceedings of the said courts shall be carried on, and the sentences,
decrees, judgments, and orders thereof pronounced and
declared in open court, and not otherwise ; and the several
pleadings and proceedings of the said courts shall be in the
English language ; and in all criminal cases the witnesses
against and for any accused person or persons shall deliver
their evidence viva voce, and in open court.

VIII. Every resident magjistrate of the colony shall have, in
all civil cases brought or instituted against any person residing
within the district for which such resident magistrate shall have
been appointed, the jurisdiction following, that is to say, —

1. In all cases founded upon any bill of exchange,

promissory note, good-for, or other written
acknowledgment of debt, commonly called a
liquid document, in which the sum demanded
shall not exceed forty pounds sterling.

2. In all cases (except as hereinafter is excepted) in

which the debt or damages demanded diaJl not
exceed twenty ^ pounds sterling.

3. No such magistrate shall have jurisdiction in, or

cognizance of, any action or suit wherein the
title to any lands or tenements, or the title to
any fee, duty, or office is in question, or any
action or suit to try the validity of any will,
or other testamentary instrument, or any action
or suit whereby rights in future can be bound. . . .
IX.-XV. [Jurisdiction m matters of ejectment, recovery
of debts, attachment of goods, etc.]

* Changed to " fifty " by Act No. 34 of 1909.



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1864] COURTS OF JUSTICE 127

XVI. [A decree of civil imprisonment may be granted
where a debtor has not suificient moveable property to meet
an award made to a plaintiff by the court.]

XVII.-XXXII. [Arrest, imprisonment, arrest of goods in
security for rent, etc.]

XXXIII. It shall and may be lawful for any person, being
a party to any civil suit or action depending in the court of
any resident magistrate within this colony, to appeal against
any final judgment, decree, or sentence of such court ... to
the supreme court, or to the circuit court which shall next
be holden for the district of such resident magistrate. . . .

XLII. The resident magistrates of the colony shall, re-
q)ectively, have jurisdiction, without appeal or review, in all
cases of crimes and offences wherein any person may be
accused of any crime or offence not punishable by dealh,
transportation, or banishment from this colony. . . .

XLIII. It shall not be lawful for any court of resident
magistrate, in any case, to sentence or adjudge any female to
receive personal correction, or to hard labour on any road,
street, or public place.

XLIV. [Crimes commenced in one district and completed
in another are triable by the magistrate of either district.]

LVIII. [The Letters Patent commonly called the Charter
of Justice, as far as repugnant, is repealed, as also various
ordinances.]

LIX. [Rules, orders, and regulations for procedure before
the Courts of Resident Magistrate, dated 22nd March 1828,
are hereby repealed, and others are enacted.]

LX. [Interpretation clause.]

LXI. This Act shall commence and take effect from and
after the promulgation thereof.

P.2?.0., CO. 50/3.



THE EASTERN DISTRICTS COURT ESTABLISHED.
[26 July 1864.]

No. 21 of 1864.

16. 81. Ad. — For adding to the Number of Judges of the
Supreme Court, and for other purposes.*

Whereas it has been found that the number of Judges of
which the Supreme Court, as at present constituted, is in-
sufiftcient to enable the said Judges to hold Courts in the
several districts of this Colony as frequently as the wants of
the inhabitants require : And whereas, in order to remedy

*Cf. further Acts No. 35 of 1896, No. 35 of 1904, and No. 9 of 1905, not
printed in this volume.



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128 CAPE OF GOOD HOPE [1864

these evils, and to afford, at the same time, to the inhabitants
of the Eastern Districts of this Colony the benefit of a local
Court, it is expedient to add to the number of the Judges of
the said Supreme Court, and to enable certain of the Judges
to form a separate Court, having jurisdiction over the said
Eastern Districts, but so, however, as not to interfere with
the jurisdiction of the said Supreme Court over every part
and portion of the entire Colony : Be it enacted ... as
follows :

I. [Repugnant laws repealed.]

II. The Supreme Court aforesaid shall henceforth consist
of one chief justice and four puisne judges.

III. It shall be lawful for the Governor to appoint, pro-
visionally, until Her Majesty's pleasure be known, the puisne
judge at present required to complete the number aforesaid
of four puisne judges.

IV. Such judge shall be appointed in manner and form
as by the fourth section of the Charter of Justice directed, in
regard to the appointment of fit and proper persons to supply
such vacancies m the ofiice of judge, as are in the said section
mentioned.

VII. A court of justice is hereby established in and for
the several districts named in the Schedule to this Act, to
have and exercise such jurisdiction as is hereafter specified,
and such court shall be caUed *' the Court of the Eastern
Districts of the Cape of Good Hope."

VIII. The said last-mentioned court shall consist of, and
be holden befo?:^, any two of the puisne judges of the Supreme
Court, whom the Governor shall from time to time assign for
the purpose.

IX. The Court of the Eastern Districts hereby created
shall have, throughout the districts within and for which it
is established, a jurisdiction concurrent with that of the
Supreme Court in and over all causes arising, and persons
residing and being, within the said districts.

XXIII. In the Court of the Eastern Districts, one judge
thereof shall be competent to execute all and every the powers,
authorities, and jurisdictions by this Act granted to or vested
in the said court. . . .

XXIV. [In case of difference of opinion on matters heard
by two judges, causes may be removed to the Supreme Court.]

XXV. [In civil suits appeal may be had to the Supreme
Court.]

XXXVI. [Attorney-General or Solicitor-General, if one is
appointed, shall prosecute. Attorney-General may appoint a
person to prosecute. Solicitor-General (when appointed) to
possess the powers conferred on Attorney-General in regard



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1876] COURTS OF JUSTICE 129

to criminal cases. Solicitor-General to be appointed by the
Queen, but Governor may appoint provisionaUy.]

XXXVII. [Holding of usual circuit courts not prevented.]

XXXVIII. [Appeal from circuit courts to be direct to
Supreme Court ; but causes may be referred from Circuit to
Eastern District Court by consent of parties or by order of
presiding judge.]

XLIII. This Act may be cited for all purposes as " The
Administration of Justice Act, 1864.

Schedule : Albany, Albert, Alexandria, Aliwal North,
Bathurst, Bedford, Colesberg, Cradock, Fort Beaufort, Graaff-
Reinet, Hopetown, Humansdorp, Middelburg, Murraysburg,
Peddie. Port Elizabeth, Queenstown, Richmond, Stocken-
strom. Somerset, Uitenhage, Victoria East.

P.R.O., CO, 50/4.



SPECIAL JUSTICES OF THE PEACE.

No. 10 of 1876.

10.82. Ad. — To improve the Administration of Justice in
places distant from a Seat of Magistracy. [Assented to
4th July 1876.]

Whereas it is expedient that facilities should be given for
the trial of certain offences committed at places distant from
the seat of a resident magistrate : Be it enacted by the Governor
of the Cape of Good Hope, with the advice and consent of
the Legiskttive Council and House of Assembly thereof, as
follows :

I. It shall be lawful for the Governor from time to time
to appoint any person whom he may think proper to act as
a special justice of the peace under this Act within such local
limits as may be fixed and determined by him, not being
within ten miles of the office of any resident magistrate.

II. Every such special justice of the peace ^dl have and
enjoy, and be at liberty to exercise, withm the limits so fixed
and determined as aforesaid, over and in respect of any person
committing within such limits any of the offences following,
that is to say :

(A) Assault, where no dangerous wound is given and

no dangerous weapon is used.

(B) Thefts of any property not being a horse, mare,

gelding, colt, filly, mule, ass, bull, cow, ox, heifer,
calf, aneep, goat, or ostrich, and not exceeding
in value the sum of two pounds sterling.

(C) Attempt to conmiit either of the above offences, or

being accessory to the commission thereof.



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130 ' CAPE OF GOOD HOPE [1879

(D) Receiving stolen goods (not being an)rthing ex-

cepted in clause B, and not exceeding in value
the sum of two pounds sterling), knowing them
to have been stolen.

(E) (F) (G) (H) [Contravention of any municipal

regulation, of certain police regulations, of rules
regulating the sale of spirituous liquors and of
laws relating to passes, contracts of service, etc.]
the same jurisdiction, power, and authority as if he were the
resident magistrate of the ^strict in which the offence then
under investigation was committed, [but only minor punish-
ments may be inflicted by such special justice of the peace.]

IX. [Proceedings in cases sununarily adjudicated to be
forwarded to Registrar of Supreme or Eastern Districts Court,
as the case may be, to be confirmed or altered or reversed.]

XIV. This Act may be cited for all purposes as " The
Better Administration of Justice in Criminal Cases Act, 1876."

P.R.O., CO. 50/6.



THE HIGHER COURTS OF JUSTICE.

No. 5 of 1879.*

No. 88. Act, — To increase the EiBftciency of the Court of the
Eastern Districts, and to Improve the Administration of
Justice generally. [Assented to 8th September 1879.]

Whereas it has been found expedient to add to the number
of judges constituting the court of the eastern districts, and
to make provision for appeals from the said court and from
the circuit courts, and to establish a court of criminal appeal
for the Colony : Be it therefore enacted by the Governor of
the Cape of Good Hope, by and with the advice of the Legis-
lative Council and House of Assembly thereof, as follows :

I. [Repugnant statutes repealed.]

II. [Supreme Court to consist of chief justice and five
puisne judges.]

III. The court of the eastern districts shall consist of and
be holden by, and before, three of the puisne judges of the
supreme court, of whom one, to be called the judge president,
and who shall be nominated and appointed by the said Governor,
^all be a judge of the court of appeal hereinafter mentioned,
and the two others shall not be judges of the said court of
appeal. . . .

IV. Every judge who shall be assigned and appointed to
the office of ]udge president of the eastern districts court shall

^ Sttperaeded by Act No. 35 of 1896.



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i879] COURTS OF JUSTICE 131

be entitled to hold the said office so long as he shall continue
to be a judge of the supreme court.

V. [When a case is heard by two judges and they differ,
the case is to be suspended until three judc^es shall be present.]

VI. From and after the taking effect of this Act there shall
be in this Colony a court of appeal, to be called " The Court
of Appeal of the Cape of Good Hope." . . .

VII. The said court of appeal shall be a superior court of
record, and ^all consist of ue chief justice of the Cape of
Good Hope, the judge president of the eastern districts court,
and two other puisne judges of the supreme court, who shall
be thereto duly assigned and appointed by the Governor,
acting by and with the advice of the executive council.

VIII. Every judge who shall be appointed to the office of
judge of the court of appeal shall hold such office so long as
he diall continue to be a judge of the supreme court.

XI. It shall be lawful for any person being a party to any
civil suit in the eastern districts court, or in any circuit court,
to appeal to the said court of appeal against any judgment,
decree, or order of such eastern districts court or circuit
court ; . . .

XII. The forty-second and forty-third sections of the
charter of justice, and the twenty-third, twenty-fourth,
twenty-fifth, and twenty-sixth sections of Act No. 21 of 1864
are hereby repealed.

XVIII. [Judges of appeal court to frame rules for that
court.]

XX. An appeal to Her Majesty the Queen shall be allowed
by such court of appeal against any final judmient, decree,
or order thereof in any civu suit or action in which an appeal
is now allowed, and the fiftieth, fifty-first, and fifty-second
sections of the charter of justice shall apply, mutatis mutandis,
to every appeal from the said court of appeal, precisely as if
such court of appeal were the supreme court in the said charter
mentioned.

XXII. The judges of the said court of appeal, or any
three of them, shall likewise constitute a court of appeal in
criminal cases, and appeals shall be allowed to the said court
of appeal [in certain specified instances].

axIX. This Act shall take effect when and so soon as
the Governor, with the advice of the Executive Council, shall,
by proclamation published in the Government Gazette, declare
that the same is m force.

XXX. Tliis Act may be cited for all purposes as " The
Administration of Justice Amendment Act, 1879."

P.R.O., CO. 50/6.

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132 CAPE OF GOOD HOPE [1880

ADMINISTRATION OF JUSTICE IN GRIQUALAND

WEST.
No. 12 of 1880.1

No. 84. Act — ^To amend in certain req)ects Act No. 39 of 1877



Online LibraryG.W. EybersSelect constitutional documents illustrating South African history, 1795-1910 → online text (page 22 of 70)