Magistrate, Malmesbury

• 1/MBY

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)

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