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The emancipation of the slaves in 1834 gave rise to the eventual erection of its own magistracy for Malmesbury. Ordinance No 1 of 1835 regulated the details of the proceedings under the Emancipation Act. Under this act, special magistrates were to be appointed for the protection of the apprentices. For this purpose only, the colony was divided into 14 districts, including Malmesbury, to each of which a special magistrate was assigned. The sole duty of the special magistrate was to enforce the provisions of the Emancipation Act.

When the apprenticeship ceased on 1 December 1838, the Governor considered it advisable to retain, inter alia, the services of the special magistrate of Malmesbury “whereas it is expedient to provide for the more effectual administration of justice….”

Ordinance No 1 of 1839 provided for the establishment of a Court within a district called Malmesbury, which shall be a Court of Record and that the said district of Malmesbury shall be subject to the jurisdiction and authority of a Court of Resident Magistrate.

Mr JM Hill, who acted as special magistrate, was appointed Resident Magistrate for the district of Malmesbury.

The initial area of jurisdiction of the magisterial district of Malmesbury was defined by a proclamation dated 24 January 1839. These boundaries were amended from time to time by various subsequent proclamations in the Government Gazette.

Periodical Courts:

The establishment of periodical courts at Hopefield and Darling from 1 December 1856, originated from a Colonial Secretary’s circular received by the Resident Magistrate of Malmesbury, “inquiring as to the places within your district in which you consider that it would be desirable to hold periodical courts…..” In this regard the Resident Magistrate had to take into consideration the population and the distance from the seat of the resident magistracy. By proclamation No 311 of 1905 an Assistant Resident Magistrate for the district of Malmesbury was appointed at Hopefield.

In December 1856 the Resident Magistrate of Malmesbury visited St Helena Bay and reported on matters concerning the fisheries. Although it is not quite clear, it seems that troubles in connection with the fisheries necessitated the establishment of a periodical court there in 1857. The reason for the abolishment of the periodical court at St Helena Bay from 15 April 1908 cannot be traced.

In connection with a petition with a petition addressed to the Government by the inhabitants of Vredenburg, and ensuing reports by the Resident Magistrate of Malmesbury, a periodical court was established at Vredenburg by a proclamation dated 23 November 1881.

In this regard the Resident Magistrate reported that “the inhabitants of the western portions of the wards St Helena Bay and Saldanha Bay, would not have to travel to attend a court of Justice as is necessary under the present arrangement.”

At Riebeeck West a periodical court was established in May 1898 apparently because of the increase in population.

Functions of the Resident Magistrate:

Judicial Functions:
The limited jurisdiction exercised by the Magistrate of the Malmesbury district until 1856, was derived from Ordinance No 33 of 1827. By Act No 20 of 1856, however, the Magistrate received extended jurisdiction. He now possessed original criminal and civil jurisdiction and performed miscellaneous quasi- and non-judicial function. This magisterial jurisdiction was amended by various subsequent statuses, both of the Cape Colony and of the Union.

Quasi-judicial Functions:
According to the “Inquest Act”, 1875 the Resident Magistrate was to act as coroner at inquests…. “to cases occurring at or within a distance of 6 miles from the seat of his magistracy.”

Administrative Functions:

The Resident Magistrate acted as Civil Commissioner for his district and in that capacity he was responsible for the application of various laws concerning financial and land matters

Ex-officio Functions:

As reflected in the records (volumes 11/1/5 and 13/1/1) the Resident Magistrate functioned in his ex-officio capacity as:
Deputy Registrar of Births and Deaths
Chairman of the Divisional Road Board
In terms of Act No 5 of 1855 the Resident Magistrate also served as an ex-officio member of the local Divisional Council and, whenever he was present, he acted as chairman of that body.

Additional Duties:

In addition to the above, the Resident Magistrate together with his clerks, formed the Matrimonial Court for his magisterial district.

The records of the Licensing Court were kept in the Resident Magistrate’s Office in accordance with the Codified Circular Instructions.

Clerk of the Peace:

The judicial authority of the Clerk of the Peace as Public Prosecutor was derived from Ordinance No 40 of 1828 as amended.

MAGISTRATES OF MALMESBURY

Name and Date of Appointment
Hill, JM (Special Magistrate) (January 1835)
Hill, JM (Resident Magistrate) (24 January 1839)
Bergh, WF (1 September 1846)
Rainier, J (1 February 1856)
Ford, ES (13 March 1866)
Duthie, GR (8 September 1879)
Faure, JC (14 January 1889)
Sweeny, CJ (3 July 1902)
Wrensch, F (1 April 1912)
Roberts, FMW (1 May 1919)
Lyne, MJ (1 July 1923)
Wither, P (1 March 1928)

By order of the governor, JH Fischer, landdrost at Tulbagh in 1818 investigated and reported on the necessity to create new sub-districts between Tulbagh and Graaff-Reinet. In the same year a sub-district of Graaff-Reinet was established at Beaufort (West). Fischer also recommended that the farms “Lange Rug” and Roode Draai” near the Hex River Poort be bought for the establishment of a new sub-district to serve the inhabitants between Tulbagh and Swellendam. In October 1819 a sub-district of Tulbagh was established at Worcester and JF van de Graaff was appointed deputy landdrost. Initially, he was assisted by a sheriff, mounted police, a messenger and a clerk. In April 1820 the boundaries of the sub-district were defined.

On the recommendation of the landdrost and heemrade of Tulbagh a court consisting of the deputy landdrost and at least two heemrade as well as a matrimonial court was created at Worcester in January 1822.

The sub-district at Worcester existed until November 1822 when the seat of magistracy of the Tulbagh district was moved to Worcester. As a result of the damage to the drostdy buildings at Tulbagh by a storm in July 1822, Captain Charles Trappes, then landdrost at Tulbagh, persuaded the governor to move the seat of magistracy to Worcester. The sub- district of Worcester was abolished and the former district of Tulbagh was renamed the district of Worcester. Trappes was appointed the first resident magistrate at Worcester in November 1822 and in 1827 he also became civil commissioner. At Tulbagh a special heemraad, assisted by a clerk, who also officiated as postmaster, was appointed. From 1 January 1828 the special heemraad was replaced by a justice of the peace who took over his functions. The latter post existed until 1848 when Tulbagh became an independent magistracy.

In December 1847 members were elected to form, together with the civil commissioner, a Board of Public Roads for the Worcester division.

In 1848 the district of Worcester comprised thirteen field cornetcies.

An assistant resident magistrate for the district was appointed in June 1899 and in September 1899 a periodical court was established at Matjesfontein.

The Archives:

A close interrelation exists between the earliest archives of the magistrate of Worcester and those of the magistrate of Tulbagh and the introductions of these two archives naturally compliment each other.

As can be seen from the main series and the inventories the archives of the former district of Tulbagh covering the period 1804 – 1822 was incorporated with the archives of the magistrate of Worcester thus forming an integral part of the latter archives.

The archives of the special heemraad and justice of the peace at Tulbagh for the period 1822 – 1848 was transferred to the archives of the magistrate of Worcester, since these officials fell under the jurisdiction of the latter magistrate.

WG Cumming was appointed as the first Magistrate for the district of Xalanga in 1878. Due to the unrest that lasted in Emigrant Tembuland from October 1880 to July 1881, his position became untenable and he had to leave his post. However, after the unrest had died down, he was re-appointed as Magistrate of Xalanga.

In November 1884 part of the district of Cala was incorporated into Xalanga. CJ Levey, formerly the Magistrate of Cala, became the Magistrate of the reconstituted district of Xalanga and the seat of the magistracy was moved to Cala.

Due to the Transkei being granted self-government on 1 November 1963, the Magistrate of Xalanga became an official of the Transkeian Government and his archives subsequent to that date were deposited in the Transkeian Archives Depot, Umtata (now Mthatha Archives Repository).

The Municipality of Somerset West was constituted on 6 November 1903, in terms of Proclamation No 350, 1903 under provision of the Municipal Act, 1882 (The Cape of Good Hope Government Gazette, No 8600, 27 November 1903).

On 1 February, the local authorities of Somerset Municipality, Strand Municipality, Gordon’s Bay Municipality, Lwandle Town Council, Macassar Management Committee and Sir Lowry’s Pass Management Committee were dissolved and each one replaced by a Transitional Metropolitan Substructure. The new Cape Metropolitan Council was created which included all the substructures (The Province of the Western Cape Official Gazette No 4929, Proclamation no 18).

On 28 May 1996, the substructures were dissolved, and a new Helderberg Substructures was created, remaining part of the Metropolitan Council (The Province of the Western Cape Official Gazette No 5051, Proclamation No 27).

On 4 December 2000, the Cape Metropolitan Council and the substructures were abolished, and the new City of Cape Town was created ((The Province of the Western Cape Official Gazette No 5588, Proclamation No 479).

The Municipality of Knysna was constituted on 12 October 1881 under provision of proclamation No 169 in terms of Ordinance No 9 of 1836.

In terms of the Local Government: Municipal Structures Act, 1998 (Act 117 of 1998) the existing Municipality of Knysna, Sedgefield Transitional Local Council, Belvidere Estate Transitional Local Council, Brenton Transitional Local Council, Knoetzie Transitional Local Council, Outeniqua Transitional Representative Council and Rheenendal Transitional Local Council was disestablished and the Knysna Local Municipality established (Province of Western Cape Provincial Gazette Extraordinary No 5592, 22 September 2000, Provincial Notice No 504, 22 September 2000). The Knysna Local Municipality forms part of the larger Garden Route (formerly Eden) District Municipality.

The Municipality of Beaufort West was constituted on 3 February 1837 under the provisions of Ordinance 9 of 1836.

In terms of the Local Government: Municipal Structures Act, 1998 (Act 117 of 1998) the existing Beaufort West Municipality together with the Beaufort West Transitional Representative Council was disestablished and the Beaufort West Local Municipality established (Province of Western Cape Provincial Gazette Extraordinary No 5593, 22 September 2000, Provincial Notice No 508, 22 September 2000). The Beaufort West Local Municipality forms part of the larger Central Karoo District Municipality.

The Village Management Board of Sedgefield was established in terms of Proclamation No 143 of 1967 and the first meeting of the Board was held on 31 July 1968 (3/SGD 1/1/1/1).

With effect from 1 January 1974 the Sedgefield Village Management Board was abolished and a new municipality established with the same boundaries as those of the former village management board area (The Province of the Cape of Good Hope Official Gazette No 3740, 31 August 1973, Proclamation No 307, 17 August 1973).

In terms of the Local Government Transition Act, 1993 (Act 209 of 1993) the local government bodies within the Sedgefield Forum Area, namely the Municipality of Sedgefield, Smutsville Management Committee and Buffalo Bay Local Council, was dissolved with effect from 1 December 1994 and the Sedgefield Transitional Local Council established (Province of Western Cape Provincial Gazette Extraordinary No 4896, 30 November 1994, Proclamation No 87, 29 November 1994). In terms of the Local Government: Municipal Structures Act, 1998 (Act 117 of 1998) the existing Sedgefield Transitional Local Council together with other municipalities was disestablished and the Knysna Local Municipality established (Province of Western Cape Provincial Gazette Extraordinary No 5592, 22 September 2000, Provincial Notice No 504, 22 September 2000). The Knysna Local Municipality forms part of the larger Eden District Municipality.

On 1 January 1980 the Divisional Councils of George, Knysna and Mossel Bay were re-constituted together to form the amalgamated Divisional Council of Outeniqua.

The following local areas committees were instituted: Boggomsbaai, Brenton, Buffels Bay, Herolds Bay, Hoekwil, Keurboomstrand, Little Brak River, Nature’s Valley, Reebok, Tergniet, Wilderness, Wilderness Heights and Wittedrift.

On 31 March 1989 portions of the Divisional Council Areas of Outeniqua and Langeberg were established as the South Cape Regional Services Council. The other portions of the Divisional Council Areas of Outeniqua and Langeberg together with the Divisional Council Area of Klein Karoo-Langkloof were established as the Klein Karoo Regional Services Council.

As was the case in Batavia, the establishment of the Orphan Chamber at the Cape of Good Hope arose out of the need to provide for the collection and administration of the property of persons who died intestate and left heirs who were absent from the Colony or who were under age. The property of persons who died on the voyage to and from Europe and found on board, was also subject to the jurisdiction of the Orphan Chamber. However, the Government was advised in a letter dated 30th March, 1711 that the Chamber was not to be burdened with deceased estates of Company’s servants and burgers who had died on the voyage.

The main functions and duties of the Orphan Chamber were:

The administration of the estates of persons dying intestate in the Colony or on the voyage and leaving absent or minor heirs, as well as estates of those who had not specifically
excluded the Orphan Master in their will, or had specifically appointed them even where their heirs were majors and resident here;
The registration of wills of deceased persons;
The administration of minors’ property;
Receiving and paying to present and absent claimants the portions or legacies due to them;
Keeping a death register of persons who died at the Cape;
Recording the resolutions and transactions of the Board.

After the devastating effect of the smallpox epidemic of 1713, the Council of Policy empowered the Orphan Chamber to protect the transfer of property of all free individuals at the Cape. All wills and deaths at the Cape had to be registered with the Orphan Chamber but the Chamber only inventoried and acted as executor for the categories of estates listed below.

The Orphan Chamber was the executor of the estates of free persons:
who left heirs under 25 (and unmarried) or of unsound mind;
who left heirs who were either out of the country or not apparent;
who died ab intestato or ex testamento (without a will or testament);
if there was a specific request in the will or testament for the Chamber to act as executor;
if the will did not specifically exclude the Chamber from acting as executor.

The Orphan Chamber had to track down any possible heirs. Heirs residing outside of the country of death had to send a power of attorney proving their relationship to the deceased, and the Orphan Chamber would then pay out what was rightfully theirs. If an individual died without children or spouse, then the inheritance went to their next of kin, whether brothers, sisters, parents, or cousins (sometimes even to the 10th degree). If an inhabitant, or a stranger, died at the Cape without any acknowledged relatives, the property, after discharging the debts, was sold, and reserved for the unknown heirs, and every method was taken for their discovery. If no heir was found within 50 years from the date of death, the estate reverted to the Government.

In 1714 the Government issued to the Orphan Masters a set of rules and Regulations by which they were to be guided in the carrying out of their duties (Resolutions, Council of Policy, 26 June 1714). These instructions were taken from the Statutes of Batavia, together with a tariff of fees which were to be charged in administering an estate.

In 1793 renewed instructions were issued and compiled from the 1714 rules, from those of the Orphan Chamber at Batavia, from a sketch of instructions submitted to the Government by the Orphan Masters, and from a report relative to the improvement to the Chamber.

Provisional instructions were framed for the Orphan Chamber by Commissioner General Jacob de Mist but these show that they were evidently framed more with a view to confirm the existing rules than to introduce new regulations.

The following are two of the articles of the instructions laid down: Immovable property of orphans could only be sold by an order of Court, and such property had to be put up for public auction and sold to the highest bidder. A minor, absent from the country for sixteen years, could be publicly summonsed at his last-known place of residence. If it was ascertained what had happened to him, his heirs could receive his property upon giving security de restituendo. Persons had to obey a summons to appear before the Masters as if it had emanated from a Court, and upon a third default to appear they could be brought before the Court of Justice. From the resolutions sent from time to time by the Government to the Board and the instructions framed in 1793, it would appear that the Orphan Masters were given almost the same portion of authority and jurisdiction in testamentary matters as was exercised in earlier periods by the spiritual Courts in England.

According to the provisions of Ordinances 104 and 105 of 1833, the Orphan Chamber was abolished and its duties were transferred to the newly appointed office of Master of the Supreme Court. The Supreme Court of the Cape of Good Hope was established in 1827. Subsequently a code for the administration and distribution of insolvent estates was enacted on behalf of minors and persons under curatorship.

The Master controls the administration of deceased and insolvent estates. In this connection he protects the property rights of creditors and heirs and especially of minors. The acts which mainly control his functions are the Administration of Estates Act, 1965 (Act 66 of 1965), the Insolvency Act, 1936 (Act 24 of 1936), the Companies Act, 1973 (Act 61 of 1973), the Close Corporations Act, 1984 (Act 69 of 1984) and the Trust Property Control Act, 1988 (Act 57 of 1988). He appoints executors and trustees in estates and liquidators of companies. He has in respect of minors to a limited extent the function of upper guardian, especially in regard to alienation of hypothecation of their immovable property. The interests of mentally affected persons and persons under curatorship are also protected by him. The most important task of the Master~s office is to check liquidation and distribution accounts. He has wide powers to enforce proper administration by executors, liquidators and trustees. There were six Master~s offices in South Africa prior to 1997, one in each of the provincial capitals and one at Kimberley and also Grahamstown.

In terms of Proclamation No 152 of 15 December 1995 (Establishment of Rural Local Government Structures) the South Cape Regional Services Council was disestablished and replaced by the South Cape District Council (Province of Western Cape Provincial Gazette Extraordinary No 5004 of 15 December 1995).

On 22 September 2000 the South Cape District Council, Klein Karoo District Council and various other councils were disestablished and the Garden Route/Klein Karoo (later Eden, then Garden Route) District Municipality was established in terms of sections 12 and 14 of the Local Government: Municipal Structures Act 1998 (Province of Western Cape Provincial Gazette No 5592 of 22 September 2000, Provincial Notice No 497 of 22 September 2000).