Court name
High Court Main Division
Case number
CRIMINAL 2 of 2013
Title

In re: Outjo Inquest 30 of 2012 In re: Outjo Inquest 48 of 2012 (CRIMINAL 2 of 2013) [2013] NAHCMD 1 (07 January 2013);

Media neutral citation
[2013] NAHCMD 1
Coram
Van Niekerk J













REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT




Case No: CR 1/2013



Case No: CR 2/2013







In
the matter:



IN RE: OUTJO
INQUEST 30 OF 2012



(HIGH COURT MAIN
DIVISION REVIEW REF NO 2136/2012)



________________________________________________________________



In the matter:



IN RE: OUTJO INQUEST
48 OF 2012



(HIGH COURT MAIN
DIVISION REVIEW REF NO 2137/2012)



________________________________________________________________



Neutral citation: In
re: Outjo Inquest 30 of 2012; In re: Outjo Inquest 48 of 2012
(CR
1-2013; CR 2-2013) [2013] NAHCMD 1(7 January 2013)



Coram: VAN
NIEKERK, J



Delivered: 7
January 2013








Flynote: Inquests
– section 18 and 21 of the Inquests Act, 1993 (Act 6 of
1993) discussed



Summary: The
magistrate of Outjo held inquests into the circumstances and cause of
death of two persons in terms of the Inquests Act, 1993 (Act 6 of
1993). The magistrate submitted the records of these inquests for
review by the High Court or a judge thereof in terms of section 21 of
the Inquests Act. The Court considered the provisions of section 18
and 21 of the Inquests Act. Section 18(1) is concerned with a
situation where there is reason to believe that an unnatural death
has occurred, but there is no body available for a post-mortem
examination to be held in terms of section 4 of the Inquests Act. If
the evidence proves beyond a reasonable doubt that a death has
occurred, the magistrate must record such a finding and proceed to
make certain other findings in terms of section 18(2), read with
18(3). The purpose of section 21 is to provide a statutory mechanism
in certain cases whereby a presumption of death may be given legal
effect without the need to approach the High Court for such an order
in the normal course by way of application under the common law. In
both these inquests a body was available and a post-mortem
examination was held. It was therefore not necessary for any finding
in terms of section 18(1) to be made. The Court found that it is not
clear why the magistrate considered it necessary to submit the
inquest records for review, as there is no need to presume that the
persons in question are dead. It is only in cases where no body is
available and the magistrate has made (i) a finding in terms of
section 18(1) that a death has occurred; (ii) a finding in terms of
section 18(2)(a) about the identity of the deceased; and (iii) a
finding in terms of section 18(2)(c) about the date of death, that
section 21 requires submission of the inquest record for review.
These matters should not have been submitted for review under section
21 of the Inquests Act. No orders were made. The inquest records
were merely returned to the magistrate.


















_______________________________________________________________



JUDGMENT



_______________________________________________________________


VAN
NIEKERK, J:



[1] In these two matters
the magistrate of Outjo on 21 November 2012 held inquests into the
circumstances and cause of death of two persons in terms of the
Inquests Act, 1993 (Act 6 of 1993). As the issues are the same, it
is convenient to deal with them by way of a single judgment.



[2] In Outjo Inquest No.
30 of 2012 the magistrate recorded his findings as follows:



Findings in terms of section
18(1) of Act No 6 of 1993:




  1. Identity of the deceased person:
    Unknown – Male



  2. Date of death: Unknown



  3. Cause or likely cause of death:
    Unknown



  4. 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: Unknown’.




[3] In Outjo Inquest 48
of 2012 the findings were the same, except that the identity of the
deceased was found to be Kaleb Mushinga, a male person.



[4] The magistrate
submitted the records of these inquests for review by this Court or a
judge of this Court in terms of section 21 of the Inquests Act. The
relevant parts of section 21 provide as follows:



21 Certain findings on
review equivalent to order presuming death



(1) Whenever at an inquest
contemplated in subsection (1) of section 18 a regional magistrate or
magistrate records 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 the inquest, together with any comment which he or she may
wish to make, to the High Court of Namibia for review by that Court
or a judge thereof.



(2) If such finding of the regional
magistrate or magistrate is not set aside on review, such finding
shall have the effect of an order of the High Court of Namibia
presuming the death of the person concerned.



(3)
......................................



(4)
......................................’








[5] To understand section
21 it is necessary to consider section 18 of the Inquests Act which
provides as follows:



18 Finding



(1) If, in the case of an inquest
where the body of the deceased person is alleged to have been
destroyed or where no body has been found or recovered, the evidence
proves beyond reasonable doubt that a death has occurred, the
judicial officer holding the inquest shall record a finding
accordingly, and thereupon the provisions of subsection (2) shall
apply.



(2) At the close of an inquest the
judicial officer holding the inquest shall record a finding as to-



(a) the identity of the deceased
person;



(b) the cause or probable cause of
death;



(c) the date of death;



(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.



(3) If the judicial officer is unable
to record any finding mentioned in subsection (2), he or she shall
record that fact.’



[6] It is clear from a
consideration of the provisions of section 18(1) that they are
concerned with a situation where there is reason to believe that an
unnatural death has occurred, but there is no body available for a
post-mortem examination to be held in terms of section 4 of the
Inquests Act. If the evidence proves beyond a reasonable doubt that
a death has occurred, the magistrate must record such a finding and
then, as (s)he would normally do in all inquests, act in terms of
section 18(2) and, if need be, section 18(3). This means that the
magistrate must proceed to make further findings in terms of section
18(2) in relation to the matters set out in this section. Should the
magistrate be unable to make a finding on any of these matters, (s)he
must record this fact in terms of section18(3).



[7] The purpose of
section 21 is to provide a statutory mechanism in certain cases
whereby a presumption of death may be given legal effect without the
need to approach the High Court for such an order in the normal
course by way of application under the common law.



[8] In both these
inquests a body was available and a post-mortem examination was held,
but because the bodies were in advanced stages of decomposition, the
examinations conducted were limited and the cause of death could not
be determined. As the body was available in each case, it was not
necessary for any finding in terms of section 18(1) to be made.
Indeed, the magistrate made no such finding. Although he refers to
section 18(1), the matters he did consider were those contemplated in
section 18(2). It is not clear why the learned magistrate considered
it necessary to submit the inquest records for review, as there is no
need to presume that the persons in question are dead. Their bodies
provide the clearest evidence that they are indeed dead.



[9] It is only in cases
where no body is available and the magistrate has made (i) a finding
in terms of section 18(1) that a death has occurred; (ii) a finding
in terms of section 18(2)(a) about the identity of the deceased; and
(iii) a finding in terms of section 18(2)(c) about the date of death,
that section 21 requires submission of the inquest record for review.
It should also be noted that, even if there is no body available and
the magistrate is able to find beyond a reasonable doubt that a death
has occurred, but (s)he is unable to make a finding on the identity
or the date of death, the matter is not reviewable in terms of
section 21.



[10] Clearly these
matters should not have been submitted for review under section 21 of
the Inquests Act. There is no need for any orders to be made. The
inquest records are merely returned to the magistrate.























______________________



K van Niekerk



Judge