Ord. 40-1828. from the uncertain mitted. 52. In case where a doubt may arise concerning the degree and Refusal of bail quality of the crime, from the uncertain issue of the deed which issue of the act com- has been done, as in the case of a wound, of which it cannot be foretold whether the sufferer shall die or recover, every Judge or Magistrate, to whom application for bail is made, may refuse to grant the same until all hazard of the life of the sufferer be at an end. Excessive bail not to be required. Application of prisoner aggrieved to prison or refusal preme or Court, or any Judges 53. The amount of the bail to be taken in each case shall be at the discretion of the Judge, or Magistrate, to whom the application to be admitted to bail shall be made; provided that no person shall be required to give excessive bail. 54. In every case in which a prisoner considers himself by illegal committal aggrieved by the proceedings of the Judge of any inferior Court, or of Buil, to the su- any Magistrate, in having illegally committed him to prison, or Circuit refused to admit him to bail, or in having required excessive bail, of the Supreme it shall be competent to such prisoner to apply to the Supreme Court, or to the Circuit Court of the district within which he is imprisoned or in case neither of these Courts shall be then sitting, to the Chief Justice, or any of the Judges of the Supreme Court, who shall make such order thereon as to them, in the circumstances of the case, shall seem just. Court. Condition of recognizance, that the to answer to an 55. The recognizance shall be taken by the Magistrate, either prisoner shall appear from the prisoner alone, or from the prisoner and one or more sureindictment at any ties, at the discretion of the Magistrate, according to the nature months, and that he and circumstances of the case; and the condition of such recogniwill accept service at zance shall be, that the prisoner shall appear and answer to any some certain place indictment that shall be presented against him, in any competent time within Nix by him elected. Court, for the crime or offence, wherewith he is charged, at any time within the space of six months from the date thereof; and that he will accept service of any such indictment, and summons thereor, at some certain place by him elected and therein expressed. Gaol returns to be 56 (1) The keepers of all the gaols within the district of Cape delivered by the keepers of gaol in Town shall, under a penalty of five pounds sterling, at each session Court at the Crimi- of the Supreme Court holden for the trial of criminal cases, deliver Cape Town to the nal Sessions. in the country dis to the Court a list of all the persons confined within their respective gaols, which list shall specify the date of commitment of each prisoner, and the cause of his imprisonment, and the name of the committing Magistrate. Returns of gaols 57. The keepers of all the gaols within the district of each Circuit tricts to be delivered Court shall, under a penalty of five pounds sterling, at each session to the Court at the of each Circuit Court, deliver to the Court a list of all the persons Circuit Sessions. confined within their respective gaols; which list shall specify the date of commitment of each prisoner, and the cause of his imprisonment, and the name of the committing Magistrate. 'As to district of Albany see Act 21 of 1864, § 35. Ord. 40-1828. com Prisoners mitted in Cape Town and Cape District to be brought to trial from commitment. 58. (1) In every session of the Supreme Court, holden for the trial of criminals, every prisoner who has been committed for trial within Cape Town and the Cape district, shall be brought to trial before the said Court, provided that twenty-one days have elapsed at the Criminal Sexbetween his commitment for trial and such session, or else shall sions of the Supreme Court, provided 21 then be admitted to bail; unless it shall be made to appear to the days have elapsed satisfaction of the Court, that in consequence of the absence of material evidence, or some other sufficient cause, the trial cannot then be proceeded in without defeating the ends of justice; or unless a warrant shall have been obtained from the said Court for the transmission of the prisoner to the gaol of some circuit district, in order for trial before the Circuit Court, or any inferior Court within the same. And if such prisoner is not brought to trial at the second session of the Supreme Court holden after the date of the second Session of his commitment for the trial of criminals, and has not previously mitment, entitled to been tried before any inferior Court, or before the Circuit Court, in discharge from imorder to his trial before which a warrant for his transmission to the gaol of the district of such Circuit Court had been obtained. provided such Circuit Court to which he was transmitted for trial shall in the meantime have been holden, he shall be discharged from his imprisonment for that offence, for which he had been committed for trial. Such prisoners not brought to trial at the Court after com prisonment. Prisoners com districts to be the first Circuit Ses 31 days have elapsed 59. Every prisoner committed for trial within any of the districts of any Circuit Court, shall be brought to trial at the first session of mitted within circuit the Circuit Court of that district, holden after the date of the com- brought to trial at mitment; provided, thirty-one days have elapsed between the date sion, of the commitment and the time of holding such Court, or else from commitment. shall be admitted to bail; unless it shall be made to appear to the satisfaction of the Court, that in consequence of the absence of a material evidence, or of some other sufficient cause, the trial cannot then be proceeded in without defeating the ends of justice; or unless before the close of such first session of such Circuit Court, a warrant shall have been obtained from some competent Court for his re-committal to gaol, in order to his trial elsewhere. And if Suen prisoners not such prisoner is not brought to trial at the second session of the second Session of the Circuit Court of the district which shall be holden after the date of Circuit Court after the commitment, and has not previously been tried before any titled to discharge other competent Court, to which he shall have been transmitted as aforesaid, he shall be discharged from his imprisonment for that offence, for which he has been committed for trial. brought to trial at commitment. en from imprisonment. Prisoner may by consent be brought after commitment. 60. Any prisoner, by his own consent and with the consent of the public prosecutor, may be brought to trial either before the to trial at any time Supreme or the Circuit Courts at any time after his commitment; notwithstanding that the periods of twenty-one days and of thirtyone days respectively shall not have expired (2). Trial may be postponed after arraignment but not after jury is sworn; § 3, Art 17 of 1874. * Repealed by Ordinance No. 73, § 23, but re-enacted by Act 7 of 1873. Ord. 40-1828. mitted by warrant of 61. When a warrant has been obtained from any competent Prisoner trans- Court for the transmission of any prisoner for trial before any other a competent Court competent Court, such prisoner shall forthwith be transmitted to for trial before the gaol of the district of such last-mentioned Court, and shall be another competent the next session of court, or to be discharged. Court, to be tried at tried at the next session of the said Court holden for the trial of the last-mentioned criminal cases, or otherwise shall be discharged from his imprisonment for that offence for which he was transmitted for trial: provided that such session shall not be holden within twenty-one days after the transmission of such prisoner to the gaol aforesaid. Persons discharg- 62. No person who has been once discharged from gaol, in reason of non-trial consequence of not being brought to trial within the period hereinted for the same of- before prescribed, shall be subject to be recommitted to gaol, either for examination or for trial, for the same offence. (1) ed from gaol by not to be recommit fence. Persons admitted 63. No person who has been admitted to bail, and who has not brought to trial, not been duly brought to trial, shall be obliged to find further bail, or required to find fur- shall be subject to be committed to gaol, either for examination or trial, for the same offence, in respect of which he was formerly admitted to bail. ther bail. Discharge from imprisonment or expiration of zance, no bar trial. recog to Liberation of pri 64. Neither any such discharge from imprisonment, nor the expiration of the recognizance, shall be any bar to any person being brought to trial in any competent Court for any offence for which he was formerly committed to gaol or admitted to bail. 65. The Supreme Court and Circuit Courts shall, at the close of soners by Supreme each of their said sessions, discharge all such prisoners, as by law shall then be entitled to liberation. and Circuit Courts. Penalties in this Ordinance recover of of agreed p or ty, without par 66. All the penalties herein before provided, shall be recoverable able at the instance before the Supreme Court or Circuit Court within the district of which such penalties shall be incurred, at the instance either of the public prosecutor or of the party aggrieved, without prejudice to the right of the prisoner to insist also for damages against the person, incurring such penalties, in a civil action before any competent Court. dice to civil actions. Form of procedure to be in accordance with rules of Supreme Court. FORM OF PROCESS IN THE SUPREME COURT AND CIRCUIT COURTS. 67. The form and manner of proceeding in the trial of crimes the to be observed in the Supreme Court, and Circuit Courts respectively, shall in pursuance of His Majesty's charter be according to the rules, orders, and regulations framed, constituted, and established by the said Supreme Court. 1 But see 64. No. 41. [Feb. 4, 1828. Ordinance for determining the Qualification of Persons liable to serve on Grand and Petit Juries, and the mode for making out and returning Lists of the same. [Repealed by Ordinance No. 84.] No. 42. [Feb. 25, 1828. Ordinance for regulating the Establishment of the Orphan Chamber, and for the better Administration of Estates held in trust by the members thereof. [Repealed by Ordinance No. 104.] No. 43.-Sd. Richard Bourke.] [Feb. 28, 1828. Ordinance for empowering the Collector of Taxes in Cape WHEREAS certain of the taxes now payable in this Colony have been heretofore collected and got in by the landdrosts, landdrosts and commissioned heemraden, deputy landdrosts, deputy landdrosts and commissioned heemraden, residents, and residents and commissioned heemraden, of the several districts, sub-districts, and residencies, respectively; and certain others of the said taxes have heretofore been collected by and got in by the late burgher senate: And whereas the offices of landdrost, deputy landdrost, and resident, have now ceased and determined, and the said burgher senate has been abolished, whereby the revenue can no longer be collected as heretofore, and it is therefore necessary to make some other provision in that behalf: Be it therefore enacted by His Honour the Lieutenant-Governor in Council that the several taxes and duties heretofore payable to, and levied by, the said burgher senate shall, from and after the passing of this Ordinance, be payable to, and levied by, the collector of taxes in Cape Town; and the several taxes and duties heretofore payable to, and levied by, the landdrosts, deputy landdrosts, and residents of the several districts, sub-districts, and residencies, and all taxes hereafter to be imposed shall, from the time aforesaid, be payable to, and levied by, the said collector and the Civil Commissioners respectively 1 See Ord. 77-1830, Preamble and § 2, and Ord. 13, 1844. E Preamble. Taxes heretofore her Senate payable to levied by the Burg the collector of taxes. Taxes heretofore levied by landdrost missioners. payable to civil com Ord. 44-1828. Collector of taxes and civil commis within their respective jurisdictions; and the said collector and Civil Commissioners shall have full right and power to collect all taxes and duties, and arrears thereof, and to sue for and recover the same by any action or suit to be brought by them in any competent Court. 2. And be it further enacted that the said collector of taxes. sioners to take oath. and the said Civil Commissioners shall take the following oath. before the Chief Justice, or any of the Judges of the Supreme Court, or any Resident Magistrate (who are hereby empowered and required to administer the same), before they act in pursuance of the provisions of this Ordinance : I, A. B., do swear that I will act truly, faithfully, impartially,. and honestly, according to the best of my skill and knowledge, in collecting the several taxes which I am empowered to do by an Ordinance marked No. 43, bearing date 28th day of February, 1828; and that I will act in all matters and things which shall be brought before me in collecting the said taxes, without favour or affection. So help me God! No. 44.-Sd. Richard Bourke.] [March 19, 1828. Ordinance for establishing and regulating the Court of the Judge of Police and Resident Magistrate for Cape Town and the District thereof, and the Cape District, and for other purposes. [Partially repealed by Ordinance No. 4 of 1834.-Repealed by Act No. 20 of 1856,—' save and except in so far as, by the 17th section thereof, the messengers of the courts of Resident Magistrates are authorised to sell by auction goods taken in execution of the process of such courts.'] Messengers of the court of resident to 17. And whereas it is expedient that goods taken in execution, magistrate entitled and to be sold by virtue of any process of the said court, or of sell by public the court of the Resident Magistrate in any district of this Colony, auctioneer's licence should be sold by the messengers of the said court or their deputies goods taken by virtue of process of alone, without an auctioneer licensed for that purpose: Be it therefore enacted that, from and after the passing of this Ordinance, it shall and may be lawful for the messengers of the said courts, and their deputies respectively, without any licence for that purpose, and they are hereby authorised, to sell by public auction, all such goods as shall or may be taken by virtue of any process. these courts. |