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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
Case No: DR37/2026
Pinetown Magistrate’s Court Inquest No: 218/2024
In re: Review in terms of section 18 of the Inquests Act 58 of 1959
ORDER
The following order shall issue:
1. The proceedings before magistrate N Ndlovu on 10 December 2025 in this
case are in accordance with justice.
2. The finding of the magistrate in terms of s 16(1) of the Inquests Act 58 of
1959 (the Act) is confirmed.
3. The findings of the magistrate in terms of s 16(2) of the Act are corrected
as follows:
(a) Identity of the deceased person: L[...] N[...], a female child, born on 9
November 2019.
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(b) Date of death: 11 April 2022.
(c) Cause or likely cause of death: Drowning (hypoxia).
(d) Whether the death was brought about by any act or omission prima facie
involving or amounting to an offence on the part of any person: No.
JUDGMENT: REVIEW
Barnard AJ (Harrison J concurring)
Introduction
[1] In April 2022, KwaZulu -Natal was devastated by a catastrophic natural
disaster. Unprecedented rainfall caused severe flooding across the province ,
leading to a formal declaration of a National State of Disaster under s 27(1 ) of
the Disaster Management Act 5 7 of 2002. 1 Many people lost their lives, and
others remain missing . This matte r concerns one such miss ing person . It is a
review in terms of s 18 of the Inquests Act 58 of 1959 (the Act) to determine
whether the learned magistrate’s findings in terms of s 16 (1) and s 16(2) of the
Act are in accordance with justice.
Factual background
[2] During the night of 11 April 2022, severe flooding swept L[...] N[...], a
two-year-old child, away from her home, along with her mother and older sister.
While her mother, T[...] P[...] N[...] (Ms N[...]) and her older sibling survived,
L[...] has never been found and remains missing.
1 Published in GG 46247, 18 April 2022.
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[3] On 10 December 2025, the learned magistrate, Ms N Ndlovu, conducted
an inquest into L[...]’s presumed death, as her body had not been recovered. Ms
N[...] attended the proceedings but did not testify orally. Instead, her affidavits
and several others were admitted into evidence. In her affidavit ,2 she confirmed
that L[...] had been swept away during the flood. In a later affidavit, 3 Ms N[...]
requested a finding that L[...] be presumed dead. The other affidavits show that
Ms N[...] reported L[...] missing shortly after the incident and that search and
rescue efforts were undertaken by members of the South African Police Service
and the eThekwini Municipality. The evidence also confirms the occurrence of
the floods and the subsequent declaration of a state of disaster.
[4] In accordance with s 16(1) of the Act, t he magistrate found that the
evidence proved beyond a reasonable doubt that a death has occurred . She
proceeded to record her findings in terms of s 16(2) of the Act on the prescribed
form called a J56. Her findings were as follows:
‘Findings in terms of section 16 of the Act, as amended:
(a) Identity of the deceased person L[...] N[...], male child, Age: 2 years old
(b) Date of death 11 April 2022
(c) Cause or likely cause of death Drowing (hypoxia) (sic)
(d) Whether the death was brought about by any act or omission prima facie involving or
amounting to an offence on the part of any person: No’ (My emphasis.)
[5] The magistrate , in accordance with s 18(1) of the Act, submitted the
matter for review. The matter was initially placed before Moodley AJ, who
noted that the J56 referred to a male child while the remaining documents
referred to a female child. She requested an explanation from the magistrate, as
well as a birth certificate or, alternatively, the child’s date of birth. The matter
was remitted to the learned magistrate, who responded in due course. The
2 Exhibit A.
3 Exhibit L.
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magistrate explained that the reference in the J56 to a male child was incorrect.
She confirmed that L[...] was a female child, born on 9 November 2019. The
magistrate’s response is accompanied by a further affidavit from Ms N[...] dated
21 July 2026, in which Ms N[...] confirmed that L[...] was a female child born
on 9 November 2019. She also stated that she did not have L[...]’s birth
certificate because it had been swept away during the floods.
The law
[6] Section 16 of the Act provides as follows:
‘(1) If in the case of an inquest where the body of the person concerned is alleged to have
been destroyed or where no body has been found or recovered, the evidence proves beyond a
reasonable doubt that a death has occurred, the judicial officer holding such inquest shall
record a finding accordingly, and thereupon the provisions of subsection (2) shall apply.
(2) The judicial officer holding an inquest shall record a finding upon the inquest –
(a) as to the identity of the deceased person;
(b) as to the cause or likely cause of death;
(c) as to the date of death;
(d) as to whether the death was brought about by any act or omission prima facie involving
or amounting to an offence on the part of any person.’
[7] Section 18 of the Act provides as follows:
‘(1) Whenever a regional magistrate or magistrate has in the case of an inquest referred to in
subsection (1) of section 16 recorded a finding in regard to the matters mentioned in that
subsection and in paragraphs (a) and (c) of subsection (2) of that section, such regional
magistrate or magistrate shall submit the record of such inquest, together with any comment
which he may wish to make, to any provincial or local division of the Supreme Court of
South Africa having jurisdiction in the area wherein the inquest was held, for review by the
court or a judge thereof.
(2) Such finding, if confirmed on such review, or, if corrected on review, as so corrected ,
(2) Such finding, if confirmed on such review, or, if corrected on review, as so corrected ,
shall have the same effect as if it were an order granted by such court or such judge that the
death of the deceased person concerned should be presumed in accordance with such
finding.’
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[8] Few reported cases address s 16(1) read with s 18 of the Act. Most cases
concern inquests that were incorrectly referred for review under s 18 of the
Act.4 In Todd v Magistrate , Clanwilliam and Others ,5 the S upreme Court
Appeal (the SCA) confirms that reviews in terms of s 18(1) of the Act are
limited to circumstances provided for in s 16(1) of the Act where the body of a
person concerned is alleged to have been destroyed, or where no body has been
found or recovered and the evidence prove beyond reasonable doubt that a death
has occurred.
Analysis
[9] As noted above , no oral evidence was led. Oral evidence at a public
inquest promotes transparency and public confidence by showing that unnatural
deaths are properly investigated. In Marais NO v Tiley ,6 the Appellate Division
explains it as follows:
‘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 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.
[10] In Todd,7 the SCA states:
‘In terms of s 13(1) of the Act, a judicial officer may forego the hearing of oral evidence and
determine the inquest on the affidavits filed of record. This is a discretion conferred upon the
4 In re Geregtelike Doodsondersoek van ‘n Onbekende Bantoeman 1978 (1) SA 379 (T); In re Inquest Number
42/2025 held at East London, in the East London District [2026] ZAECMKHC 27.
5 Todd v Magistrate, Clanwilliam and Others [2025] ZASCA 185; 2026 (2) SACR 1 (SCA) (Todd) para 16.
6 Marais NO v Tiley 1990 (2) SA 899 (A) (Marais) at 902A-B.
7 Todd para 23.
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magistrate, which must be exercised not only judicially, but in conformity with the purpose of
the Act as encompassed in s 10. This can only be done by paying due regard to the general
rule that there must be a public inquest with oral evidence. This ru le may only be departed
from where exceptional circumstances exist which entitle the judicial officer to accept all the
affidavits submitted as proof of the facts stated therein. There are no hard and fast rules, and
the circumstances of each case would depend on whether such c ourse of action should be
followed. In Marais, it was further stated that:
“Broadly speaking a departure from the general rule would only be justified where the
affidavits before the inquest magistrate do not raise relevant dispute of fact and,
furthermore, are conclusive in respect of all relevant matters; or they strongly point to
the debt under consideration not having been caused by an act or omission constituting
an offence on the part of some person, eg where it is a clear case of suicide or
accidental death…” (sic) (Footnote omitted.)
[11] The general rule in Marais and Todd should be followed unless the
circumstances justify a departure. In my view, this case does. No request was
made for oral evidence, and the affidavits reveal no factual dispute. Ms N[...]
attended the proceedings and did not object to the prosecutor’s request that the
witness statements be read into the record. The matter is not contentious: L[...]’s
presumed death arose from a natural disaster, and there is no indication of
wrongdoing by any person. Oral evidence would not have assisted the inquiry
and would likely have caused Ms N[...] further emotional distress and secondary
trauma after the loss she has already suffered.
[12] L[...] has been missing since 11 April 2022. Her body was never
recovered. The magistrate’s finding that the evidence proves beyond reasonable
doubt that a death has occurred stands to be confirmed. Accordingly, I am
doubt that a death has occurred stands to be confirmed. Accordingly, I am
satisfied that the magistrate’s finding in terms of s 16(1) of the Act is in
accordance with justice.
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[13] As indicated earlier, Moodley AJ pointed out to the learned magistrate
that there is a discrepancy in the record regarding L[...]’s gender. The magistrate
explained that she made a mistake when she indicated on the J56 that L[...] was
a male child. Ms N[...] deposed to an additional affidavit confirming that L[...]
was a female child and provided her date of birth. It is apparent from the record
that the learned magistrate made a bona fide mistake when she referred to the
incorrect gender on the J56. Section 18(2) of the Act explicitly provides that the
recorded findings of a magistrate may be confirmed on review, or it may be
corrected, and if so corrected, it shall have the same effect as if it were an order
granted by such court or such judge that the death of the deceased person
concerned should be presumed. The present matter calls for such correction in
respect of the gender of the deceased.
Order
[14] In the result, I make the following order in terms of s 18(2) of the Act:
1. The proceedings before magistrate N Ndlovu on 10 December 2025 in this
case are in accordance with justice.
2. The finding of the magistrate in terms of s 16(1) of the Inquests Act 58 of
1959 (the Act) is confirmed.
3. The findings of the magistrate in terms of s 16(2) of the Act are corrected
as follows:
(a) Identity of the deceased person: L[...] N[...], a female child, born on 9
November 2019.
(b) Date of death: 11 April 2022.
(c) Cause or likely cause of death: Drowning (hypoxia).
(d) Whether the death was brought about by any act or omission prima facie
involving or amounting to an offence on the part of any person: No.
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_____________________________
BARNARD AJ
I agree.
_____________________________
HARRISON J