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1990
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[1990] ZASCA 40
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Marais NO v Tiley (377/88) [1990] ZASCA 40; 1990 (2) SA 899 (AD); (30 March 1990)
377/88
N v H
WESSEL MARAIS NO A
ND
ELIZABETH TILEY
SMALBERGER, JA -
377/88
N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
WESSEL
MARAIS N O
Appellant
and
ELIZABETH
TILEY
Respondent
CORAM
: JOUBERT, HEFER, SMALBERGER,
MILNE, JJA, et GOLDSTONE, AJA
HEARD
: 8 MARCH
1990
DELIVERED
: 30 MARCH 1990
JUDGMENT
SMALBERGER, JA:-
The appellant is an additional magistrate
in Cape Town. In his capacity as such he presided over an inquest into the death
of the
late George William De'Ath ("the deceased"). The deceased died on 14
June
/2
2
1986 in conseguence of injuries inflicted upon him on 10 June 1986 when he
was attacked by a group of men while filming events taking
place in the then
strife torn area of Crossroads near Cape Town. The present appeal lies against
the judgment of the Cape of Good
Hope Provincial Division (VAN DEN HEEVER and
BERMAN, JJ) setting aside, on review, the decision of the appellant dispensing
with
oral testimony at the
inguest into the deceased's death, leave to appeal
having been granted by
the court a
quo
. The judgment of that court is reported as
De'Ath
(Substituted by Tiley) v Additional Magistrate, Cape Town
1988(4) SA 769
(C).
The relevant facts surrounding the deceased's death, and the
circumstances giving rise to the review application, appear from the
judgment of
the court a
quo
(at 770 B - 775 E). They need not be repeated
/3
3 herein. The issue on appeal relates to the manner in which
the inquest into the deceased's death was held. Stated more broadly,
was the
court a
quo
entitled to interfere on review with the exercise of the
appellant's discretion to hold a non-public inquest into the deceased's
death
based solely on affidavits and without recourse to oral evidence.
An inquest is an official investigation into
a death occuring otherwise than from natural causes,
which has not been
the subject of a criminal prosecution. Inquest proceedings are governed by the
provisions of the Inquests Act 58
of 1959 ("the Act"). The function of an
inquest is to determine the identity of the deceased person; the cause or
likêly cause
of death; the date of death; and whether the death was
brought about by any act or omission involving or amounting to an offence
on the
part of any person (s
/4
4
16(2)). (The latter determination would include, in
so far as this is possible, a finding as to who the
responsible offender
is or offenders are.) The
underlying purpose of an inguest is to promote
public
confidence and satisfaction; to reassure the public
that all deaths
from unnatural causes will receive
proper attention and investigation so
that, where
necessary, appropriate measures can be taken to prevent
similar occurrences, and so that persons responsible
for such deaths may,
as far as possible, be brought to
justice. In this respect I am in full
agreement with
the views expressed by CILLIe, JP and MARAIS, J in
Timol and Another v Magistrate, Johannesburg and
Another
1972(2) SA 281 (T) at 287 H to 288 A that:
"For the administration of justice to be complete and to instil confidence, it
is necessary that, amongst other things, there should
be an official
investigation in every case where a person has died of unnatural causes, and the
result of such investigation
/5
5
should be made known. Therefore the Inquests Act provides that, if there is
reason to believe that a death has occurred, that such
death was not due to
natural causes and that it was not followed by the institution of criminal
proceedings, there shall be an
inquest as to the circumstances of the death"
and
further (at 292 A - B) that:
"the inquest must be so thorough that the public and the interested parties are
satisfied that there has been a full and fair investigation
into the
circumstances of the death".
To my mind it is
axiomatic that public confidence and
satisfaction would normally best be
promoted by a full
and fair investigation, publicly and openly
held,
giving interested parties an opportunity to assist the
magistrate
holding the inquest in determining not only
the circumstances surrounding the
death under
consideration, but also whether any person was
responsible for
such death. A full and fair
investigation presupposes adherence to basic principles
/6
6
of procedure, and would in the normal course require
the hearing of
viva voce
evidence. That justice must
be seen to be done is no less a truism in the holding
of inquests than it is in the hearing of trials.
The predecessors of the present Act were Act
12 of 1919 and (in the Cape Province) Cape Act 22 of
1875. In the course of its judgment the court a
quo
made brief
reference to the provisions of those Acts
(at 775 G - 776 B). It drew attention to the fact
that under the Cape Act
22 of 1875 oral evidence was
essential, whereas under Act 12 of 1919 oral
evidence
was the rule and could only be dispensed with in very
limited circumstances. It then proceeded to contrast
the Act with its
predecessors, pointing out certain
differences in pattern between them. It
ultimately
concluded, in relation to the Act:
"But the intention of the Legislature remains that the primary
procedure is by way of a
/7
7
public inquiry on oral testimony" (at 776 D).
With
this conclusion I am, for reasons that follow, in
full agreement.
Section 5 of the Act provides that where
(after a police investigation into the death of any
person) no criminal
proceedings are instituted in
connection with such death, the public
prosecutor shall
submit all relevant statements, documents and
information
gathered in the course of such
investigation to a magistrate. Where it
appears to
the magistrate that such death was not due to natural
causes he
shall proceed, as required by s 5 (2) "to
hold an inguest as to the
circumstances and cause of
the death". In terms of s 8(1) of the Act the
inguest
magistrate may cause to be subpoenaed any person to
give evidence
or to produce any document or thing at
the inguest. Of vital importance is s
10 of the Act.
/8
8
If one leaves aside the proviso thereto (which is not
relevant to the
present appeal), the section reads:
"Unless the giving of oral evidence is dispensed with under this Act, an inquest
shall be held in public".
The main or dominant
clause of s 10 contains the
injunction that an inquest "shall be held in
public".
The remaining words of the section are subordinate to
this
clause. The requirement that an inquest shall be
held in public clearly
implies that oral testimony must
be heard. It would be purposeless to hold
an inquest
in public if only affidavits are to be admitted (in
terms of s
13(1)) and no
viva voce
evidence is to be
led. That oral evidence and
a public inquest go hand
in glove is also apparent from the wording of s
10.
Properly interpreted, in the context of the Act,
s 10 in effect
provides that as a rule there should be
a public inquest with oral evidence.
This will ensure
/9
9
as far as possible a full and fair inquiry. There can
be no full and fair
inquiry on inconclusive or
conflicting áffidavits as to relevant
facts. A public
inquiry with oral evidence is also more in keeping with
an
inquest being in the nature of a judicial
investigation rather than a purely
administrative
procedure.
Section 13(1) vests a magistrate with a
discretion to forego oral evidence. It provides:
"Upon production by any person, any document purporting to be an affidavit made
by any person in connection with any death or alleged
death in respect of which
an inquest is held, shall at the discretion of the magistrate holding the
inquest be admissible in proof
of the facts stated
therein."
In terms of s 13(2) a magistrate may
causê any person
who made such an affidavit to be subpoenaed to
give
oral evidence at the inquest, or may cause written
interrogatories to be submitted to such person for
/10
10
reply. The seemingly wide and unfettered discretion conferred upon a
magistrate by s 13 is not an absolute or arbitrary one. It must
be exercised not
only judicially, but in conformity with the policy of the Act as encompassed in
s 10. In other words, due regard
must be had to the fact that a public inquest
with oral evidence is the general rule. This rule may only be departed from by
way
of exception where circumstances exist entitling the inquest magistrate to
accept all the affidavits submitted to him "in proof of
the facts stated
therein" in terms of s 13(1). No hard and fast rules can be laid down as to what
circumstances would justify such
a course being followed. In each case it is a
matter for the proper exercise of his discretion by the inquest magistrate with
due
regard to all relevant considerations. Broadly speaking a departure from the
general rule
/11
11
would only be justified where the affidavits before the inquest magistrate do
not raise relevant disputes of fact and, furthermore,
are conclusive in respect
of all relevant matters; or they point strongly to the death under consideration
not having been caused
by an act or omission constituting an offence on the part
of some person e g where it is a clear case of suicide or accidental death.
In
relation to the exercise of such discretion no onus of proof rests upon a party
seeking a public inquiry.
I agree with the finding of the court a
quo
(at 775 F) that the appellant, as appears from his opposing affidavit,
"laboured under a misapprehension as to the foundation upon
which his discretion
in terms of s 13(2) of the Act rests". His affidavit shows no appreciation of
the general rule with regard to
the holding of inquests encompassed in s 10 of
the Act.
/12
12 The appellant accordingly exercised his discretion on a
wrong premise. By doing so he precluded himself from properly applying
his mind
to whether a public inquest with oral evidence should have been held. His
decision not to hold a public inquest was therefore
subject to review.
(
Shidiack v Union Government (Minister of the Interior
)
1912 AD 642
at
651-2;
Northwest Townships Ltd v The Administrator, Transvaal
1975(4) SA
1 (T) at 8 G). The court a
quo
was accordingly entitled to set aside the
appellant's decision and, for reasons that follow, to make the orders it
did.
The only known or available eye-witness to the assault upon the deceased
was his sound engineer at the time, Mr A A Fosi ("Fosi").
He was with the
deceased when he was assaulted. It is apparent from Fosi's affidavit, which
forms part of the inquest
/13
13 record, that he would be able to positively identify
three of the deceased's assailants if he saw them again. The opportunities
he
had to observe them, and the conditions prevailing at the time, were such as to
make for reliable identification. As the appellant
was required by s 16(2)(d) of
the Act to record a finding on whether the deceased's death "was brought about
by any act or omission
involving or amounting to an offence on the part of any
person", it was a matter of considerable importance to establish as far as
possible the identity of the deceased's assailants. In this regard the appellant
said the following in his opposing affidavit:
"Met die oorweging van Applikant se aansoek het ek die mening gevorm dat die
vraag aangaande die identiteit van die oorledene se
aanvallers nie by wyse van
die aanhoor van mondelinge getuienis oor die aangeleenthede waarna Applikant in
sy aansoek verwys het,
opgeklaar sou kon word nie. Die
enigste
/14
14
bekende ooggetuie, ANDILE ANDREW FOSI ("FOSI") verklaar dat hy seker is dat hy
'n totaal van drie uit die altesame 20 of meer persone
wat hom en die oorledene
aangeval het, kan identifiseer. Daar is egter geen suggestie dat hy die name van
hierdie drie
persone ken nie. Wat hy duidelik bedoel is dat as hy hierdie drie persone weer
sou sien, soos byvoorbeeld op 'n foto, hy sou kon
bevestig dat dit hulle is wat
by die aanval betrokke was."
It is not fully
apparent what the appellant had in mind
when he said that " (d)aar is egter
geen suggestie dat
hy die name van hierdie drie persone ken nie".
The
words suggest that he was of the view that if the names
of the
deceased's assailants were not known, it would
not be possible to identify
them. His failure to call
Fosi as a witness is inexplicable on any other
basis.
If he did hold such view he clearly erred, as the
deceased's assailants
could have been identified other
than by their names, e g by reference to their presence
on photographs or
video recordings. In this respect
/15
15
the appellant obviously misjudged the position
concerning the means
available to assist Fosi in
identifying the deceased's assailants. It is common
cause that the tape in
the deceased's video camera,
with which he filmed right up to the time of the
attack
upon him, was subsequently tampered with. There is
some dispute as to what remains on the tape.
According to the affidavit of
Detective Warrant Officer
Carstens, the investigating officer into
the
circumstances surrounding the deceased's death:
"Foto's wat berei is vanaf die video-opname deur die oorledene opgeneem in die
laaste sekondes voor die aanval op hom, toon twee
persone, vermoedelik lede van
die witdoeke wie moontlik lig op die saak kan werp. Hierdie foto's is so
onduidelik dat geen positiewe
identifikasie gedoen kon word
nie."
On the other hand the deponent Mr I Robbie, a
cameraman
with Independent Television News, said the following of
the same
tape:
/16
16
"The tape revealed a group of people
gathered together. One person who appeared to be a leader was talking through a
megaphone. The entire tape consisted of a 'freeze
frame' or 'still shot' of the
group and the man with the megaphone".
Obviously
valuable material has been erased from the
tape. That this was done, or
allowed to happen, is
deserving of the severest stricture. However,
some
portion of the tape may still be available to show to
Fosi. The tape
is apparently in London at present,
but there is no reason to believe that it
cannot be
obtained and produced, if required.
With regard to other available video material
the
respondent's attorney, Mr G I Rushton, said the
following in his affidavit in
support of the
respondent's review application:
"In addition , there are two television networks (WTN and CBS) which have
television footage relevant to the events in Crossroads
immediately before and
immediately after De'Ath's death, but these networks will
only
/17
17
make the said material available to the inquest if they are subpoenaed to do so
by the Court. I have been informed that it is the
policy of these networks to
make such footage available only if they are subpoenaed to do so, and I verily
believe this to be true."
Mr Rushton's affidavit
stands uncontradicted cm this
point. Fosi confirms in his affidavit the
presence of
other members of the "press" (which, I presume, would
include camera crews) in the vicinity of where the
eyents leading to the
fatal attack on the deceased
occurred.
It may well be that, if he gave evidence
Fosi would
be able to point out, with ref erence to
available video material, one or
more of the three
persons he claims he will be able to identify as
being
amongst the deceased's assailants. The possibility of
this happening is a reasonable one. It is certainly
not so remote that it
need not be explored. The court
/18
18
a
guo
correctly recognised this to be so, and was fully justified in
making the order which it did.
As appears from the record and the j udgment
of the court a
quo
, the turmoil in Crossroads over the relevant period
was due in the main to open hostilities between two warring factions identified
as the "comrades" and the "witdoeke" (or "vigilantes"). There is a dispute on
affidavit as to whether the comrades or the witdoeke
were responsible for the
attack on the deceased. Furthermore, various deponents on behalf of the
respondent accused the police of
openly siding with the witdoeke in their
conflict with the comrades, an accusation which the police deny. It was argued
on the respondent's
behalf that the order of the court a
quo
should also
have provided for oral evidence to be led in relation to these disputes. Despite
the absence of a cross-
/19
19
appeal, the appellant was not averse to the point being argued.
The
requirement in s 5(a) of the Act that an inquest must be held into "the
circumstances and cause of the death" necessitates consideration
only of such
circumstances as will enable the inquest magistrate to make such findings as he
is enjoined by s 16(2) to record. Only
evidence relevant to such findings would
be admissible, and only disputes relevant to such findings need to be resolved
by oral evidence.
Neither of the disputed issues appear to have any bearing on
the findings that need to be made in terms of s 16(2). To determine
whether the
persons who assaulted the deceased were members of the comrades or the witdoeke
will probably not bring one any closer
to fixing legal responsibility for the
deceased's death. The members of neither group were known to Fosi, so
/20
20
that knowledge of what group was involved is unlikely to assist him in making
a positive identification. Neither group
per se
could have been held
criminally responsible for the deceased's death. Only such members of the group
involved whose conduct in relation
to the deceased render them liable for his
death could be held responsible. It would therefore seem to be irrelevant to the
findings
the appellant is required to make to determine what group's members in
general were responsible for the attack on the deceased. To
the extent that the
appellant may, after hearing Fosi's evidence, consider a determination in this
regard to be relevant, the order
of the court a
quo
is wide enough to
permit him to hear such further oral evidence as he deems necessary.
As far as alleged police involvement on the side of the witdoeke or
vigilantes is concerned, even
/21
21
if the respondent's allegations could be established, there exists no causal
connection between such conduct and the death of the
deceased. As found by the
court a
quo
(at 777 E) "there is no suggestion that police activity or
inactivity triggered the attack upon the deceased on the lOth. Had the
death
being inquired into been that of a comrade instead of a news reporter different
considerations would obviously have applied".
While it is undoubtedly a matter
of grave concern if the police sided with the witdoeke, it is not a matter which
properly falls
to be investigated at an inquest into the death of the deceased,
not being relevant to the findings that need to be made. In this
respect I agree
with the court a
quo
(at 778 B-C) "that it fell outside the scope of the
magistrate's function to inquire into possible police misconduct during the
clashes
between the vigilantes and the
/22
22
comrades not suggested by the facts alleged by any deponent to have been
causally related to deceased's injuries".
In the result there are no grounds
for interfering with the order of the court a
quo
. The appeal is
accordingly dismissed, with costs, such costs to include the costs of two
counsel.
J W SMALBERGER JUDGE OF APPEAL
JOUBERT, JA )
HEFER, JA ) CONCUR
MILNE, JA )
GOLDSTONE, AJA )