m - DISA

examine the moker of the iUt#Mnt in order to
ascertain the truth of the ellegatlons contained in
the statement. Hwvir, the magistrate may decide
to call th« parson who made tha statement to giva
evidence - but than tha magistrate haa tha discration
to determine which quaationa tha lawyer ahould be
alloaad to ask.
After all tha avldanca (such aa it is ) has baan
hesrd* tha Magistrate 'shall racord a finding,...
a) aa to tha identity of tha deceased person;
b) aa to the cause or likely cause of death;
0) as to the dete of death}
d) aa to whether tha death eas brought about by any
act or omission Involving or amounting to an
offence on the part of any person*.
Zf the amglstrate is unable to record any finding,
then he/she must record that fact. No reasons need be
given by the.magietrete for coning to any of tha
findings.
If the moglfttrete states
1) that the court is unable to record e finding, or
2) that tha death eas brought about by an act or
omission involving or amounting to an offence on
the part of any person, or
3) if requested to by the attorney general,
then the magistrate must give the file of the inquest
to the attorney general who may then, in hie
discretion, reopen the InQuost.
There mrm certain offences that the Inqueat Act
does set out, the Boat important being that "any
person who prejudices, influences or anticipates the
proceedings or findings of an inqueat....shall be
guilty of an offence 1 . Sentence is a maximum of
R900, or 6 months, or both. Thie offence eas
Introduced In 1979, not long after the conclusion
of the Biko inquest.
Bearing in elnd tha fact that tha public
prosecutor and the aaglatrate ere public eervants in
the pay of the state, and the extent of the discretion
thet ie given to the megletrete, It le clear that
the Inojjest Act is vulnerable to ebuae. The
magistrate can, with the uee of the discretionary
powers, direct end channel the events in the
inquest to the extent of almost excluding the party
representing the relatives of the deceased*
An effective summary of the Act is to compare the
embit of the magistrate'a discretion with the rights
of representstiveeof the deceased.
The following fall elthln the magistrate's discretion:
1) Vhether a medical examination should be held or
not (eectlon 3(2)).
2) thether the deceased's body should be disinterred .
or not (section 3(d)).
3) Who should be present at the poet mortem besldee
tha district surgeon and police.
4) Tha date of the Inqueat - 'reasonable notice.*.to
be given to the spouse or relative, provided the
spouse or relative is available 9^S the giving of such
notice eill not, in the opinion of the magistrate,
unduly delay the inquest 1 (section ?).
5) which witnesses should be celled to give evidence.
6) which assessors should alt with the Magistrate to
decide on the findings: must alao get Ministerial
sanction for this (section 9(0).
?) which persons should be excluded froe the place
of the lnqueet - '....the mmgietrate holding the
lnqueet mey In hia discretion exclude froe the place
where tha lnqueet le held eny person whose presence
thereat is, in his opinion not necessary or desirable'
(section 10).
a) wnich questions way be put by Interested partlee
to the witnessee - 'Representatives of interested
parties aay only put such questions as the magistrate
aay allow* (section 11(2)).
9) whether and when the inquest should be ertjournod
(eectlon 12(1»,
10) which documents should be eoMesible In proof of
the facts stated therein (section 13(1)).
11) Ihether the person making the above-mentioned
affidavit shell be celled to give evidence
(section 13(2)).
12) Whether evidence Should be taken on commission
or not (section 15).
13) whether Interested pertlee should see or obtain
. •
the documents given by the prosecutor to the
magistrate ehlch aey or will be used in the lnqueet.
'It will be in hie discration whether he ellowe
/ P*ge 10
thee to have a copy or to peruse the document, and it
will be in his discretion whether It Is to be ellowed.
in respect of all tha documents or only In respect of
ecme of thsmf and aa to shen this le to be done, or in
what circumstances and subject to whet conditions the
perueel is to take place or tha copies ere to be
delivered 1 . .
14) whether e list of witnesses and documents to be
used in the trial be given to the interested party.
The rights of interested parties (normolly relotlves
of the deceased):
1) The rigiht to nominate legal representation.
2) The right to nominate e medical practitioner to be
present et the medical examination (eectlon 3(a)(b)).
3) To put such questions to witnesses as the
magietrate may allow (section 11(2).
4) To hand in affidavlte (section 13(l)) - eno ash:
that the makers of the effldevits be aubpoenaad to give
orel evidence.
Poet-mdrtomo
THE lnqueet Act leys down the legal framewor* in
which the post mortem exeminetion le to tmfce piece.
According to the Act t a meglatrate to whom e death
la reported may *if he deeme it expedient in the
Interests of Justice, ceuss (the body) to be
examined by tha district surgeon or eny other medical
practitioner who amy, if he demse it necessary for the
purpose of ascertaining with greater certainty the
cause of dwwth, meke or causa to be mode en examination
of any internal organ or any part of any of the
contente of the body, or of any other eubatance or
thing'.
In addition, a private pathologist may be present
If the Magistrate is satisfied thet such e person
(usually representing the family of the deceased) haa
a 'substantial and peculiar interest in the issue of
tha examination'.
Even if privets pathologists are present, they
may not neceesarily be so et the critical post-mortem.
In the case of Luke •mtwamba, private pathologists
were only able to ess the body 5 deya after the