‘Dissecting the Dead in Order to Safeguard the Living’: Inquest Reform in South Africa

• Jurisdiction: South Africa
• Author: Constantine Theophilopoulos
• Published date: 27 May 2019
• Pages: 161-181
• Date: 27 May 2019

‘DISSECTING THE DEAD IN ORDER TO

SAFEGUARD THE LIVING’: INQUEST REFORM

IN SOUTH AFRICA

Constantine Theophilopoulos

BSc LLB LLM LLD

Attorney, Associate Professor, School of Law, University of the Witwatersrand

Stephen Tuson

BA LLB

Attorney, Adjunct Professor, Wits Law Clinic, University of the Witwatersrand

1 Introduction

In the preamble to the Inques ts Act 58 of 1959 (the “Act”) provision is

made for the holding of an inquest in case s of death occurr ing from other

than natur al causes.1 In particular an inquest pro ceeding may be dened as

a medico-legal state investigation i n the form of a public non-adversarial

inquiry i nto the proximate causes of a per son’s unnatural death which has

not been the subject of a crimi nal prosecution.2 The most i mportant pur pose

of an inquest is to promote public condence in the c riminal justice system

by reassuring t he public that a death from any un natural c ause will receive

proper attention and i nvestigation and that appropriate measures w ill be taken

to prevent similar occu rrences in f uture.3 The pr incipal procedural a im of a

South African i nquest is two-fold:

(i) to determi ne the likely cause of death of a deceased person; and

1 Not e that there are a nu mber of other statu tes which allow for the holdi ng of an inquest, for ex ample, s 10

read with s 14 of the Civil Aviat ion Act 13 of 2009 (“Civil Aviation Act ”) makes it possible to hold a j oint

inquiry a nd inquest where a n aircraft a ccident has resu lted in the loss of life. S ee s 100 of the Defence Act

42 of 2002 (“Defence Act ”). See also s 2 of the Dissolut ion of Marriages o n Presumption of De ath Act 23

of 1979 (“Dissolution of Mar riages on Presu mption of Death Act” ).

2 Se e the short titl e to the Act. A simi lar defin ition to the one in t he text can be fou nd in the Repor t

of the Irish Cor oners Rules Com mittee, s ee Depart ment of Justice a nd Equalit y “Coroner’s Full Job

Descript ion” Depart ment of Justice and Equal ity

Files/coronersf ulljob.pdf> (acce ssed 02-02-2016): “the mea ning of an inquest ” on page 3 and “categorie s

of reportabl e deaths” on page 6. See t he Irish case s Bingham v Farrell [2010] IEHC 74 11; Magee v Farrell

[2009] IESC 16 13; Ramseyer v Mah on [2006] 1 I.R. 216 which specif ically define a coron er’s inquest as

an inquisito rial fact-fin ding process an d not a process for appor tioning qui lt or establishi ng civil liabilit y.

A coroner’s inquest is a p rocess of investigation which at tempts to establish the fa cts surrounding an

unnatu ral death. See also R v Nort h Humberside Coroner, ex p J amieson [1994] 3 WLR 82 100; [1995]

QB 1 where the Engli sh Court of Appeals s tated that a coroner’s inq uest is a form of inquir y designed to

establish med ical facts (ie the how, when an d where of the death). It is not lit igation intended t o try issues

of civil or legal liab ility. See furt her H Selby The Inquest Handbook (1998) 2-3; P Matthews “What is the

Coroner For” (1994) 110 LQ Rev 536.

3 Mar ais NO v Tiley 1990 2 SA 899 (A) 901E-H. See also Ti mol v Magistrate , Johannesburg 1972 2 SA 281

(T) 287F-H; Wessels v Ad ditional Magist rate, Johanne sburg 1983 1 SA 530 (T) 532E-533A. See s 31(1) &

(2) of the Coroners Act (Onta rio, Canada) R.S.O 1990 (“O ntario Coroner s Act”):

“a coroner’s inquest is a n inquisito rial and reco mmendator y process de signed to help in form the

communit y about a person’s untim ely death and to adva nce public safety f rom the lessons l earnt duri ng

that exami nation.”

161

(2016) 27 Stell LR 161

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(ii) to determine whet her or not any individual person may be held cri minally

responsible for the death of the deceased.

An inquest is usually c onducted by a judicial ofcer who may be either

a magistrate, regional m agistrate, or a High Cou rt judge. The vast majority

of inquests are usual ly held before a designated inquest magist rate of the

jurisdictional di strict in which the u nnatura l death incident is alleged to have

occurred.4

When the circum stances requi re the holding of an inquest inqui ry it

becomes a vital preliminary process which has an inuential impact on pre-

trial and tr ial crimi nal procedures. It may be arg ued that an inquest i nquiry

has a critical st rangle-hold on any future c riminal procee dings as a nding

of natural death, or even a n inconclusive nding by an inquest judicial

ofcer may reduce the risk of any fut ure criminal pro secution.5 Similarly, in

certain ci rcumstances , a thorough inquest may also lay the found ation for a

subsequent civil claim for damages. By its nature any inquest nding is one

of a number of factors which m ay inuence a Director of Public Pro secutions

(“DPP”) or control prosecutor’s decision on whether to prosecute or not. For

this reason, it is a cost effect ive strategy for a defence attorne y, acting in

the interests of a possible suspect , to concentrate on an i nquest inquir y in

order to close down the risk of a futu re prosecution. At the very lea st the

defence attorney will obt ain an early prelim inary unde rstanding of a fut ure

possible prosecution case and proceed to prepa re accordingly. Yet despite its

importance, the Act is in many respects vague in dening the functions and

duties of key inquest ofcers; particularly the procedural relationship between

an inquest magist rate, the police investigator, and mortuary and p ost mortem

medical ofcers. This is largely due to the fact that the Act has not been the

subject of statutory ame ndment or the subject of judicial comment ary by the

Superior Court s in some two decades.6 Conseque ntly, the Act has not been

subjected to constitut ional scrutiny, and no attempt h as been made to align

it with recent amendments t o the Crimina l Procedure Act (“CPA”); the Child

Justice Act 75 of 2008; the specic inque st procedures dened in the Civil

Aviation Act and the Defence Act, or other directly or indi rectly relevant

statutes. A ty pical failure of procedur al alignment bet ween the Act and other

In order to ser ve the public interes t an inquest should (i) det ermine the medic al cause of death; (ii) all ay

any rumou r or suspicion; (iii) dr aw attention to the e xistence of circu mstances which m ay lead to furt her

deaths; and (iv) pres erve the legal intere sts of the deceased per son’s family. See also Farrell v Attorne y

General [1998] 1 I.R. 203 and s 30 of the Coron ers Act 1962 (Ireland).

4 S 6(a)– (d) read with s 5(1) of the Act. In terms of s 5(2), a South Af rican inquest may not be held ove r

an unnat ural death occur ring outside the borders of S outh Africa unless sp ecifically authori sed by the

Minister of Ju stice. See also s 19 of the Bir ths and Death Regi stration Act 51 of 1992.

5 LC C oetzee & P Carsten s “Medical Malprac tice and Compensat ion in South Afric a” (2011) 86 Chi-Kent

L Rev 1263 1292 n 220:

“[I]n the m edical malpr actice contex t, the Act plays an i mportant r ole in the init iation of crim inal

charges … agai nst a medical prac titioner who cause d the death of a patient i n a negligent or intent ional

manner (at 1280); ‘a judicial i nquest is often the “ front runne r” of a later crimi nal prosecution .”

6 T he most recent am endments wer e occasioned by t he Inquest Ame ndment Act 145 of 1992; and the

Internat ional Co-Ope ration in Crimi nal Matters Act 75 of 1996; and t he only significa nt commentar y on

the Act by the Super ior Courts wa s the brief decision b y the Appellate Div ision in Marias NO v Ti ley 1990

2 SA 899 (A) and Van Vuuren v Esterhui zen NO 1996 4 SA 603 (A).

162 STELL LR 2016 1

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