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[1994] ZASCA 101
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Van Heerden and Another v Joubert NO and Others (577/92) [1994] ZASCA 101; 1994 (4) SA 793 (AD); [1994] 2 All SA 468 (A) (19 August 1994)
Case No 577/92
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
INAMARIE VAN HEERDEN
First Appellant
MARK BOSHOFF
Second Appellant
and
J J JOUBERT NO
First Respondent
MEIR GONEN
Second Respondent
MAUREEN ORA GONEN
Third Respondent
Coram:
HEFER, F H GROSSKOPF, HARMS JJA, NICHOLAS
et MAHOMED AJJA.
Heard
: 13 May 1994
Delivered:
19 August 1994
2
JUDGMENT
F H GROSSKOPF JA:
An inquest was held in terms of the Inquest Act
58 of 1959 ("the Act") arising out of the death of
the
baby of the second and third respondents. The baby
had
died at about the time of its birth on 2 April 1988
in
the Flora Clinic, Florida, The inquest was conducted
by
the first respondent, an additional magistrate for
the
district of Roodepoort (hereinafter referred to as
"the
magistrate"). At the commencement of the proceedings
on
6 December 1989 Dr Hawke, the specialist obstetrician
and
gynaecologist who had attended to the delivery of
the
baby, raised an objection to the
magistrate's
jurisdiction to hold the inquest. She contended that
an
inquest in terms of the Act could only be held into
the
death of a "person", and submitted that as the baby
was
stillborn it was not a "person" as contemplated in the
3
Act. The magistrate overruled the objection. Dr
Hawke
then instituted review proceedings in the Transvaal Provincial Division
to set aside the decision of the magistrate. The matter came
before Zulman J who
refused the application and remitted the matter to the magistrate to enable him
to determine as a matter of fact
whether the baby was dead or alive at the time
of its birth.
At the resumed inquest on 26 August 1991 the magistrate found on the
evidence that the baby had indeed been stillborn, whereupon the
appellants
raised the same objection as to jurisdiction which had previously been raised by
Dr Hawke. (Both appellants were registered
nurses in the employ of the clinic
where the baby had been delivered and the first appellant had assisted at the
birth. ) They contended
that once it was found that the baby was stillborn, the
magistrate had no jurisdiction to continue with the inquest as the enquiry
would
not concern the death of a "person". The magistrate however decided on 27 August
1991 that
4 notwithstanding his finding that the baby was
stillborn
he had jurisdiction to proceed with the matter.
The
appellants thereupon instituted proceedings in the
Transvaal Provincial Division for reviewing and setting
aside this decision of the magistrate. The matter was
heard on 23 April 1992 by Heyns J, who refused the
application with costs and ordered the magistrate to
continue with the inquest until its final determination.
The appellants now appeal with leave of the court
a quo
against the whole of the order and judgment of that
court. The magistrate has intimated that he abides the
decision of this court.
The purpose of the Act as set out in the
preamble is the following:
"To provide for the holding of inquests in cases of deaths or alleged
deaths apparently occurring from other than natural causes and
for matters
incidental thereto, ..."
It is clear from its provisions that the Act is only concerned with the
death or alleged death of a
5 "person". S 2 imposes a duty on any
person who has
reason to believe that any other "person" has died, and
that
death was due to other than natural causes, to
report accordingly to
a policeman. S 3 makes provision
for an investigation of the
circumstances of any death by
a policeman who has reason to believe
that any "person"
has died and that such "person" has died from
other than
natural causes. S 4 requires the policeman
investigating
the circumstances of the death or alleged death of any
"person" to submit a report thereon, together with all
relevant statements, documents and information, to the
public prosecutor.
The Afrikaans text, which is the signed one,
uses the following corresponding words for "person", viz
"iemand", "persoon" and "oorledene". The Act contains no
definition of the word "person" or any of its Afrikaans
equivalents. The Interpretation Act 33 of 1957 is of no
assistance in this regard. The essential enquiry,
therefore, is whether the word "person", as used in the
6
Act, includes a stillborn baby.
I shall first
consider some of the other provisions of the Act in order to establish the
purpose of holding an inquest.
S 5 sets out the circumstances in which an inquest is to be held. This
section provides that where no criminal proceedings are instituted
in connection
with a death, the public prosecutor shall submit all the relevant statements,
documents and information gathered in
the course of the police investigation to
a magistrate. Where it appears to the magistrate that such death was not due to
natural
causes he shall, subject to the directions of the Minister, take such
steps as may be necessary to ensure that "an inquest as to
the circumstances and
cause of the death" is held by a judicial officer.
The judicial officer holding the inquest is obliged in terms of s 16(2)
of the Act to record a finding as to the identity of the deceased,
the cause
or
7 likely cause of death, the date of death, and whether the
death was brought about by any act or omission
prima
facie
amounting to an offence on the part of any
person.
The main objects of an inquest are therefore to
determine the cause of death, the circumstances
surrounding the death, whether any person was responsible
for such death, and whether the death can be attributed
to the commission of any offence. (See:
Claassens en 'n
Ander v Landdros, Bloemfontein en 'n Ander
1964(4) SA
4(0) at 10D-F;
Timol and Another v Magistrate,
Johannesburg and Another
1972(2) SA 281(T) at 287H-288A;
Marais NO v Tiley
1990(2) SA 899(A) at 901E-F, 902A-B.)
In
Marais NO v Tiley
,
supra
, this Court also
emphasised
the important underlying purpose of an inquest at
901F-G:
"The underlying purpose of an inquest 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."
8
The State has an interest in the proper investigation of deaths due to
other than natural causes. Even if nobody can be held responsible
for a death in
a particular case, it may still remain pertinent to determine the circumstances
and cause of death in order that appropriate
measures can be taken to prevent
similar occurrences. There might therefore be reasons to proceed with an inquest
in the present
case. The question however remains whether the provisions of the
Act are wide enough to confer jurisdiction upon the magistrate to
do so. That in
turn depends on the meaning of the word "person" in the context of the
Act.
The general rule in the construction of statutes is that the ordinary
grammatical meaning of the words used must be adhered to.
(Union Government
(Minister of Finance) v Mack
1917 AD 731
at 739; Du
Plessis v Joubert
1968(1) SA 585(A) at 594H-595B;
Ebrahim v Minister of the Interior
1977(1) SA 665(A) at
9
678A-G;
Summit Industrial Corporation v
Claimants
against the Fund comprising the Proceeds of the
Sale of the WV Jade Transporter
1987(2) SA 583(A) at 596G-597B;
Public
Carriers Association and Others v Toll Road Concessionaries (Pty) Ltd and
Others
1990(1) SA 925(A) at
942I-943A.) Where the language of a
statute is unambiguous and its meaning clear the court may only depart from the
ordinary meaning
if it leads to absurdity so glaring that it could never have
been contemplated by the legislature. (See:
Venter v R
1907 TS 910
at
913-5, and the cases referred to above.) In my view this is not a case where it
would lead to any absurdity if the court should
give the word "person" its
ordinary literal meaning. This court has often warned against the danger of
speculating as to the intention
of the legislature, thereby departing from the
literal meaning of the words of a statute.
(Dadoo Ltd and Others v
Kruqersdorp Municipal Council
1920 AD 530
at 554-5;
Schenker v The Master
and Another
1936 AD 136
at 143;
Savage v
10
Commissioner for Inland Revenue
1951(4) SA 400(A) at '
409A;
Summit Industrial Corporation
,
supra
, at
596J-
597A.)
In the
Public Carriers Association
case,
supra
,
at 943C-944F, this court adopted a "purposive
construction" to resolve an ambiguity in a statute, but
to my mind the word "person" is not ambiguous in the
context of the Act, and a purposive construction would in
any event not lead to a different conclusion in this
case.
According to the
Oxford English Dictionary
(2nd
ed, 1989) the word "person" has the following meanings
(but excluding its meaning in law, theology, grammar and
zoology):
"1. A character sustained or assumed in a drama or the like, or in actual
life;
2.
An individual
human being; a man, woman or
child;
3.
The living body of
a human being."
The first meaning of the
word "person" given in
Webster's Third New International Dictionary of the
English
11
Language
(1966) is the following:
"An individual human being .... as distinguished from an animal or
thing."
Much to the same effect are the meanings of the
word
"person" set out in the
American Heritage Dictionary of
the English Language
(1981):
"1. A living human being, especially as
distinguished from an animal or thing;
4. The living body of a human being."
HAT (Verklarende Handwoordeboek van die
Afrikaanse Taal
, 2nd ed, 1992) gives the following
meanings of the Afrikaans word "persoon" (again excluding
its meaning in law, grammar and theology):
"1. Mens, individu, enkeling wat selfstandig handel, optree; 2 Iemand se
liggaam; 3. Speler in 'n toneelstuk, figuur in 'n roman."
The meaning of the Afrikaans word "iemand" according to
HAT
is:
"1. Die een of die ander persoon;
2.
Enige mens, wie
ook al;
3.
'n
Persoon;
4.
'n Persoon van
aansien, betekenis."
12 There is no
suggestion in any of these dictionary
meanings that the word "person" can also connote a
stillborn child, an unborn child, a viable unborn child,
an unborn human being, or a living foetus.
In
Tlali v S
1964(1) PH H83(0) the full
bench
(Potgieter and Smuts JJ) had to construe the words
"person" and "iemand" in a statute, and came to the
following conclusion:
"The legislature intended serious bodily injury to a living person. That
was the ordinary connotation of the word 'person'. The Afrikaans
text was signed
by the Governor-General and there the word 'iemand' was used. There was no
doubt, however, that in this section the
word 'iemand' was synonymous with the
word 'person'.
Cf Bosman, v.d. Merwe en Hiemstra: Tweetaliqe Woordeboek, s.v,
'iemand
'. It could never be used in connection with a corpse."
The word "iemand" could for the same reason not be used to describe an
unborn child in the context of the Act.
I am conscious of the dangers inherent in placing any reliance on the
meaning ascribed to a particular word in the context of another
statute, and
especially that of
13 a foreign country. Craies on
Statute
Law
(7th ed, 1971)
has sounded the following warning in this regard at 164:
"In construing a word in an Act caution is necessary in adopting the meaning
ascribed to the word in other Acts."
I
shall nevertheless refer to the construction
which the American
Supreme Court and the Court of Appeal
in England have placed on the
word "person" in the
context of different statutes. In the case of
Roe v Wade
[1973] USSC 43
;
410 US 113
(1973) the Supreme Court was called
upon to
decide on the constitutionality of the Texas
criminal
abortion laws. In the course of the argument it
was
submitted that a foetus was a "person" within
the
language and meaning of the Fourteenth Amendment, but
the
majority of the court (at 156-8) was not persuaded
that
the word "person" also included the unborn. In
R v
Tait
[1990] 1 Q B 290
(C A) the Court of Appeal held that
a
threat to a pregnant woman to kill her foetus was not
a
threat to kill a "person" under the Offences against the
14 Person Act 1861. I am likewise of the view that the word
"person" in the context of the present Act does not
include an unborn child.
Argument was addressed to us on the question of
legal personality or legal subjectivity. Appellants'
counsel submitted that until born alive a child has no
legal personality according to the common law. Reliance
was placed,
inter alia
, on D25.4.1.1 (
partus enim
antequam edatur, mulieris portio est vel viscerum
, "for
the child is a part of the woman, or of her entrails,
before it is born"); and Voet 1.5.5 (Gane's translation:
"As to those having their being in the womb, it may be
that on account of the uncertainty of birth they cannot
yet fall properly under the term 'human person'...").
See further: Boberg,
Law of Persons and the Family
(1977) at 8 (..."a child stillborn neither is, nor ever
was, a person"); Olivier,
The South African Law of
persons and Family Law
(2nd ed, 1980) 27-8; Van der
Vyver & Joubert,
Persone- en Familiereg
(3rd ed,
1991)
15 59-60.
Counsel for the second and third respondents, on the other hand, relied
on the judgment in
Pinchin and Another NO v Santam Insurance (Co Ltd
1963(2) SA 254(W)
where the court decided at 260B that a child has an action to recover
delictual damages for prenatal injuries. The court based its
finding on the
nasciturus
rule of the Roman law (
nasciturus pro iam nato habetur
quotiens de commodo eius agitur
, "an unborn child is regarded as already
born whenever it would be to its advantage"), and held that this "fiction" had
been received
into our law to the extent that an unborn child, if subsequently
born alive, is deemed to have all the rights of a born child whenever
this is to
its advantage. Counsel did not contend that the
nasciturus
rule can be
applied in the present case inasmuch as the child was not born alive. There are,
however, a growing number of jurists
who hold the view that the application of
the
nasciturus
rule amounts to predating the legal
16
subjectivity of the foetus and that there is no need for
a fiction any more. They maintain that the decision in
the
Pinchin
case,
supra
, lends strong support to
this
view, and that it leads to the conclusion that
inasmuch
as an unborn child can acquire subjective rights prior to
its birth, the law regards it as a legal persona. See in
this regard the conflicting views of N J van der
Merwe and w A Joubert on the underlying principles
and
effect of the
Pinchin
decision in their
respective
discussions of the case in 1963
THRHR
(vol 26) at
291 and
295. Joubert contended that it was not necessary
to
invoke the
nasciturus
rule to decide the
Pinchin
case.
See further P J J Olivier,
Legal Fictions : An
Analysis
and Evaluation
(Doctoral Thesis Leiden, 1973),
at 119-
123, and more particularly at 121 where the
learned
author observes: "The truth is simply that the foetus
is
recognised as a legal persona and is protected as
such;
the
nasciturus]
fiction has become an empty shell". L
M
du Plessis,
Jurisprudential reflections on the status
of
17
unborn life
,
1990
TSAR
44
, in dealing with
the
nasciturus
doctrine and the
Pinchin
case at 49-50, supports the
view
of Olivier. At 51-52 he further criticises the
decision
in
Christian League of Southern Africa v Rall
1981(2) SA
821(0) at 829H-830A where the court held,
inter alia
,
that the "
nasciturus
fiction" confers no legal
subjectivity on the
nasciturus
.
Be that as it may, the issue here is not
whether a foetus should be regarded as a legal persona,
or to what extent life before birth should be protected,
but whether the Act applies to the present case. Even
assuming that we have reached a stage in our legal
development where the law recognises the foetus as a
legal persona, I am nevertheless convinced that the
legislature never had any such legal persona in mind when
it used the word "person" in the Act. Were it otherwise
the legislature would surely have made an attempt to
address some of the obvious problems which such an
extended meaning of the word "person" would entail. It
18
may for instance have a far reaching effect on the
law
relating to abortion. Medical practitioners
performing
legalized abortions, and the nursing staff
assisting
them, may find themselves involved in inquests if
the
meaning of the word "person" were to be extended.
(At
present s 3(1) of the Abortion and sterilization Act 2
of
1975 lists the grounds on which a lawful abortion may
be
procured.) Such an extended meaning may also have
a
material effect on the law relating to murder
and
culpable homicide. (See Hunt & Milton,
South
African
Criminal Law and Procedure
, Vol II,
Common-Law
Crimes
(2nd ed, 1990) at 371-3; Snyman,
Strafreg
(3rd
ed,
1992) at 435-6;
s 239(1)
of the
Criminal Procedure
Act
51 of 1977
.) Further questions which would arise
are
where to draw the line, and how to resolve the
difficult
question of when life begins. When is a foetus
viable,
and is that the proper yardstick? (See in this
regard
the instructive article on
The Legal Status of the
Embryo
by M L Lupton,
1988
Acta Juridica
197
, and
more
19
particularly his views at 208-215 on when a "human being"
comes into existence. See also the article by Glanville Williams,
The
Fetus and the "Right to Life"
in Vol 53
[1994] Cambridge Law Journal 71.)
In my opinion the Act does not make provision for an inquest into the
death of a stillborn child, and it is not for us to extend the
application of
the Act by going beyond the ordinary meaning of the word "person".
In my judgment the appeal should accordingly be upheld.
The following order is made:
1.
The appeal is
upheld with costs.
2.
The
order of the court
a quo
is set aside and there is substituted therefor
the following:
"(a) An order declaring that
the first respondent has no jurisdiction to continue with an inquest in terms of
the Inquest Act 58 of
1959 into the death of the stillborn child to which the
third respondent gave birth at the Flora Clinic on 2
20
April 1988;
(b)
An order
setting aside the decision of the first respondent on 27 August 1991 to the
effect that he had jurisdiction to continue with
the inquest into the death of
the said stillborn
child;
(c)
An order that the
second and third respondents pay the costs of the application jointly and
severally, the one paying the other to
be
absolved."
F H GROSSKOPF JA
HEFER JA ]
HARMS JA ]
NICHOLAS AJA ] CONCUR
MAHOMED AJA ]