End of Legal Subjectivity

• Study Unit 4 discusses the end of legal subjectivity, proof of death, presumption of death, sequence of death (Commorientes), registration of deaths, returning from the dead, and the duty to bury the deceased.

End of Legal Subjectivity

• Legal subjectivity terminates at death.
• In customary law, death doesn't always end a person's legal subjectivity
• Customary communities believe the body rests eternally, and the spirit lives with the family forever.
• The customary law heir (indlalifa) takes the deceased's place, unlike an executor in common law (Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC)).
• After death, a body lacks rights and obligations.
• Courts depend on medical evidence to determine death.
• Somatic death is defined as the cessation of the functions of the vital nerve centres of the brainstem
• Acceptance of somatic death as the end of legal subjectivity enables organ transplants.
• Molecular death happens after somatic death when cells can still function as irreversible changes occur
• Courts haven't decided on an approach to defining death.
• The issue was raised in S v Williams, but the SCA left it open.
• There's no legal definition of death yet, which is problematic because death has legal consequences.
• Not even the Human Tissue Act defines "death" or "deceased person".
• The National Health Act 61 of 2003 sets brain death as the legal standard for matters governed by the Act.
• Medical evidence informs the courts when dealing with matters not governed by the Act.
• The Act's definition has persuasive force.
• Among communities observing customary law, cremation is not allowed; bodies are thought to be in a deep sleep with legal consequences.
• After burial of a matriarch/patriarch, sleeping ancestors/elders (amadlozi) have the same legal duties, rights, and privileges as living people.
• Family members may act as agents of the amadlozi, for example through ukuvusa and ukungenwa practices.

Proving Death

• Death can be proven via a death certificate from a medical practitioner or direct evidence.
• Death has important legal consequences.
• Death certificate requirements:
  • Issued by a medical practitioner.
  • If due to natural causes, the cause of death is indicated.
  • If due to unnatural causes, an inquest is held and no cause of death is stated. -An official death certificate is issued once death is reported to the Director General of Home Affairs and registered -This serves as prima facie proof of death (section 28(2) of the Births and Deaths Registration Act).
• Direct evidence means the High Court can certify death if a medical practitioner hasn't seen the body.
• Proof of death in private law allows:
  • A deceased's estate to be administered and distributed among heirs.
  • A surviving spouse/civil union partner to remarry or enter a new union.

Presumption of Death

• Used when there's no direct evidence or death certificate available
• Legal death may be presumed
• Two procedures: common-law procedure and statutory procedure.
• Statutory procedure is an alternative to common law.
• The court can still be involved even where the statutory procedure is used.
• Any interested person (surviving spouse, heir, creditors) can approach the High Court where the missing person was domiciled to request a presumption of death order.
• The applicant must prove the missing person's death on a balance of probabilities.
• Proof of death isn't taken lightly; applicants must share all relevant facts and circumstances.
• Each case is judged on its own merits.
• Initially, the law required absence of 7 years, but this isn't necessary anymore
• Factors considered now include:
  • Circumstances of the disappearance.
  • Age.
  • Length of absence from home.
  • Occupation.
  • Suicidal attempts.
  • Health conditions.
  • All relevant factors (Re Beaglehole 1908 TS 49).

Statutory Procedure

• Can be used if a person died of unnatural causes or if no body is found.
• The Inquests Act 58 applies in both scenarios, requiring police to investigate and report to the district's magistrate.
• With suspected unnatural death, the body must be examined by a district surgeon/medical practitioner to determine the cause (Section 3(2) of the Act).
• Police must submit a report to the public prosecutor, who then submits it to the magistrate.
• If the magistrate concludes the death was due to unnatural causes, an inquest determines the circumstances.
• If a body can't be found or has been destroyed, and evidence beyond a reasonable doubt shows death occurred, an inquest is held.
• The magistrate records findings regarding the deceased's:
  • Identity
  • Cause/probable cause of death
  • Date of death
• The magistrate also records whether death involved acts or omissions that could be considered offenses (Section 16 of the Act).
• If the magistrate can't record such a finding, this is also recorded (section 16(3) of the Act).
• The inquest record, with any comments, is sent to the High Court with jurisdiction where the inquest was held (section 18 (1) of the Act).
• If the High Court confirms the finding, it's the same as if the court ordered the person's death presumed (Sections 18 (2) and 18 (2A) of the Act).
• Differences between statutory and common law procedures:
  • The state takes the initiative in the statutory procedure, so a private person doesn't have to appear in court.
  • Common law jurisdiction isn't affected through this procedure.
  • The judicial officer must be certain beyond a reasonable doubt that the person is dead (s16 (1) of the Act).
  • In common law, the order is given if it is proven on the balance of probabilities, thus, it is easier to obtain
• If a court presumes death it doesn't mean the person is actually dead
• The presumption is rebuttable: the order can be set aside if the missing person is found alive.
• If officially presumed, the person's estate is handled like the person is dead, and life policies are paid subject to cautio de restituendo.
• An order does not automatically terminate a marriage.
• The Dissolution of Marriages on the Presumption of Death Act 23 of 1979 permits provincial courts to dissolve a marriage when granting a death presumption order
• It does not matter when the order is made, as long as its on application of the spouse
• The marriage/civil union is deemed dissolved for all purposes with this type of order

No Return after Presumption of Death Order

• If there's no presumption order, the court may divide the missing person's property among heirs, who must provide security if the person reappears.
• The court could also appoint a curator bonis to administer the missing person's affairs.

Commorientes

• Commorientes refers to people who die nearly simultaneously in the same disaster.
• Determining who died first matters to determine inheritance.
• The "General rule" is that the moment of death of commorientes is a question of fact, otherwise, the persons are deemed to have died at the same time
• Liberty Group Ltd v Cornelius N.O and Another (1989/2020) [2022] ZANCHC 66 highlights this, especially when one is a policy holder and the other a nominated beneficiary.

Registration of Deaths

• Mandated by the Birth and Death Registration Act 51 of 1992.
• All deaths (natural and unnatural) must be reported to the Director General of Home Affairs.
• This duty falls on relatives and certain other persons.
• For natural causes, anyone present at death, aware of it, or in charge of the funeral must report.
• For unnatural causes, the Director General/medical practitioner examines the deceased before notifying the police.
• An inquest will then be held
• Stillborn cases must be reported by the medical practitioner or anyone present to the Director General.

Returning from the Dead

• If a presumed dead person is alive, they or any interested party can approach the relevant court to set aside the presumption order
• It will prevent the estate to be further divided
• The High Court of the area where the missing person was domiciled has jurisdiction.
• Some effects of a presumption of death order can't be changed, such as marriages that do not revive even when the order is cancelled.
• Patrimonial effects however can be reversed
• Heirs must return what they received or its value; if they don't, the condictio indebiti action can be used for enrichment.

Duty to Bury the Deceased

• The deceased's written or verbal instructions for their funeral, cremation, and/or burial must be followed as closely as possible.
• If heirs conflict over arrangements, the surviving spouse has 'paramount' decision rights (though not always consistently applied).
• Customary law dictates that an adult be buried at their ancestral place, and the heir has a duty to point to the grave's exact location.