In the High Court of South Africa
  (Western Cape Division, Cape Town)

                                                                    Case No: 19247/19
                                                               
In the matter between:	

SEAN TODD                                                                            Applicant 

and

MAGISTRATE CLANWILLIAM  					First Respondent 
 
THE DIRECTOR OF PUBLIC PROSECUTION 
WESTERN CAPE		                           			Second Respondent  

KENDAL VICTOR (FORMERLY WAMPACH) 			Third Respondent 

Date of Hearing:							4 February 2022
Date of Judgment (electronically):				23 February 2022

JUDGMENT

LEKHULENI J

INTRODUCTION

[1]	This application arises from an unfortunate incident which occurred on 14 January 2016 at the Cedeberg Mountains in the district of Clanwilliam. On that fateful day, the deceased one Ms Terry Wampach-Todd fell from a cliff in a mountainous area and later died due to the injuries she sustained. When this tragic incident happened, the deceased was in the presence of her husband, the applicant in this matter and the only witness of this disastrous incident.  

[2]	Pursuant to that unfortunate incident, the first respondent, a magistrate in the district of Clanwilliam held an inquest and made findings in terms of section 16(2)(d) of the Inquests Act 58 of 1959 (“the Act”). Among others, the magistrate found that although there were no witnesses to give direct evidence as to how the incident occurred, the available circumstantial evidence strongly indicates foul play and the only person this foul play points at is the applicant. It is aspects of these findings that the applicant seeks to have reviewed and set aside.  More specifically, the first respondent’s findings made in terms of section 16(2)(d) of the Act in so far as he found that ‘the death of the deceased Ms Theresa Wampach-Todd was brought about by an act or omission that prima facie involves or amounts to an offence on the part of Mr Sean Todd.

[3]	In his review application, the applicant impugned this decision and seeks an order that it be set aside and be substituted with an order that it has not been established that the death of the deceased was brought about by any act or omission prima facie involving or amounting to an offence on his part or on the part of any person. The review application was not opposed by any interested party. The first and the second respondent elected to abide the decision of this court.

[4]	This application among others, relates to the manner in which the inquest into the deceased's death was held. Stated more broadly, the inquest raises the question whether the first respondent committed an irregularity that vitiated the inquest proceedings by holding a non-public inquest into the deceased's death based solely on affidavits and without recourse to oral evidence? In addition, the applicant’s counsel, Mr Tredoux, contended that the magistrate neglected or disregarded material evidence that was placed before him and this in his view amounted to an irregularity which enjoins this court to review the first respondent’s findings. If the magistrate considered all the evidence that was placed before him, so it was argued, the magistrates could have reached a different conclusion. 

FACTUAL BACKGROUND
 
[5]	The factual matrix of this matter gleaned from the statements of witnesses can succinctly be summarised as follows: The deceased and the applicant were married to each other and they lived together as husband and wife for six years. The deceased was an accomplished athlete with numerous achievements in various fields of cycling. In January 2016, the applicant and the deceased visited the Sanddrift Holiday Resort in Cederberg in the district of Clanwilliam. It was their practice to visit this place. On 14 January 2016 early in the morning they set off with their mountain bikes from their cottage and cycled on the mountain bike trail. The applicant avers that approximately 40 minutes later they reached a cliff face where they stopped to take photos. He took a photo of the deceased sitting on the edge of the cliff. After the photo was taken she got up and the applicant told the deceased that he was going to walk further. 

[6]	Applicant left his bike and carried walking and suddenly he heard a scream. The deceased yelled and when he turned around, he saw her falling forward into the cliff. He never saw if she fell along the rock on the way down to the foot of the ravine. The deceased fell 80 to 100 meters from the top of the cliff to the ground. He then found a way to go down to her and he found her lying in the ravine. At that time, the deceased was making choking suffocating sounds. Saliva and blood was oozing out her mouth. He tried to open her jaw with his hands and the deceased’s teeth clenched shut and she grabbed him on his arms and suddenly went lame. He later realized that the deceased was dead. He then went back to the Chalet to get assistance. Upon arrival at Sanddrift Holiday resort where they were based, he reported the incident to the receptionist Ms Fortuin and pointed to her on the map where the incident happened. After that he returned to his wife. Two hours later the rescue team arrived and they certified the deceased dead. Police came and investigated the scene and later the deceased was airlifted from the ravine.

[7]	Corrine Fortuin the receptionist of the Sanddrift Holiday resort declared in her statement that indeed on the day in question the applicant  came to the reception around 09h00 and asked for help. According to her, the applicant was exceptionally calm and had no sense of panic. The applicant told her that his wife fell off her bicycle and he thought that she was dead as she had no pulse and her limbs were broken. She then called the mountain rescue teams for help. She alluded to the fact that the applicant and the deceased stayed in this resort numerous times over the last few years. 

[8]	Shaheed Osmon employed by the EMS rescue services attended the scene where the deceased allegedly fell. He has been in the emergency services for 25 years. He averred in his statement that when they initially received the call regarding this incident, the report was that the deceased was still alive. Later, they were informed that she was not breathing anymore. He went to the scene in the company of his colleague Anthony Hall. Upon arrival at the scene, they found the deceased lying at the bottom of the ravine and she was dead. Anthony climbed the ravine to the spot where the deceased fell and took photos. According to him, due to the step like shape of the cliff, the injuries that the deceased sustained did not seem consistent with someone who has slipped down from the top of the cliff to the bottom. If indeed she slipped down that terrain he would have expected more injuries on the deceased. 

[9]	At the scene, he asked the applicant as to what happened that led to the deceased’s death. The applicant informed him that he and the deceased stopped to take photos. The applicant informed him that he was further up the road from where the deceased was and he suddenly heard the deceased screaming and when he turned around the deceased was gone. They retrieved the body of the deceased after the necessary photographs were taken. From his observation, the deceased suffered injuries on her left arm and both legs. He also heard the applicant say that when he had returned to his wife after reporting her fall at reception, the deceased was still alive and struggling to breath. 

[10]	Anthony Hall a volunteer rescue climber restored with Skymed Helicopter attended the scene and assisted to recover the body of the deceased from the ravine with the Skymed helicopter. Upon his arrival at the scene, the applicant gave him the description of the incident. He then prepared diagrams of the scene and a geographical layout of the place where the incident occurred. The layout he prepared formed part of the inquest record and indeed reflected the step like shape of the cliff from the top to the bottom of the ravine. 
[11]	Grant Jennings a medical scientist of 20 years experienced based at UCT also provided a statement. He studied the photos of the deceased and the layout of the place where the deceased fell and in his view, he has never seen a body in such a good condition from a cliff fall, though this is possible if the deceased did not have multiple strikes. 

[12]	The investigating officer Ms Inez Wales also filed a statement. She attended the scene together with her colleague Mr Goeieman. The scene was a place which formed a deep ravine which was approximately 25 meters from top to bottom. She observed mountain biking trails that went around the ravine and carried on. At the bottom of the ravine she saw the deceased lying on her back. She found the applicant and the rescue team at the scene. She asked the applicant what happened to the deceased and the applicant informed her that they had stopped at the top of the cliff to take photos of each other with their cellphones because the sun looked very pretty. 

[13]	The applicant told her that he took a photo of the deceased sitting on the edge of the cliff and he then walked on a sandy path which led to an outcrop of rocks. He stood there and suddenly he heard the deceased screaming and when he turned he saw her body falling over the edge of the cliff. She averred that she then went to the sandy path which the applicant pointed to her and she noticed that there were no footprints at all on this path. When the applicant saw her taking pictures of the path, the applicant suddenly started walking along the path towards her and she stopped him and warned him not to do so. 

[14]	She averred that the applicant had deep scratches under his right eye. The applicant’s legs were also covered in thin scratches. The applicant told her that he fell twice trying to get to the deceased.  She then took a statement of the applicant at the top of the cliff near the spot where the deceased had fallen.  Subsequent thereto, they left the cliff and went to the resort where the applicant was based. The applicant told her that their marriage had been sublime however going through their cellphones, she found overwhelming evidence to the contrary. That was in short her evidence as contained in her sworn statement. There were other statements which were obtained by the investigation officer which in my view are not relevant for the purposes of this review application. 

GROUNDS OF REVIEW

[15]	The applicant did not clearly set out the grounds of review in his notice of motion upon which he impugns the decision of the magistrate. However, from the reading of the applicant’s founding affidavit, the grounds of review can succinctly be summarized as follows:
 
1.	That the magistrate erred in dispensing with viva voce evidence at the hearing of the inquest.
2.	That the magistrate failed to consider material evidence placed before him and made a finding in circumstances where there was no admissible evidence at all to justify such finding.   

APPLICABLE LEGAL PRINCIPLES AND DISCUSSION

[16]	For the sake of convenience, I will consider the grounds of review set out above ad seriatim. 

Did the magistrate err when he dispensed with viva voce evidence at the hearing of the inquest?

[17]	The applicant impugns the decision of the first respondent for holding the inquest on affidavits and for not hearing oral evidence. From the inquest record, it must be mentioned that the original magistrate (Ms Duimelaar) who was assigned to attend to the inquest decided to hold the inquest proceeding in open court and to hear viva voce evidence. She also directed that a number of witnesses be subpoenaed for the hearing of the inquest. Indeed, witnesses were subpoenaed for court for the 15 June 2018. On 15 June 2018, rights to legal representation were explained to the applicant and the matter was postponed for the applicant’s attorney to 06 August 2018. 

[18]	Subsequent thereto, the designated magistrate was not available and the inquest proceedings was allocated to the first respondent. After perusing the available statements of witnesses, the first respondent decided not to hear oral evidence but to base his decision on the affidavits filed. The first respondent was of the view that a formal inquest was not necessary. The matter was heard in an open court and after listening to arguments from the daughter of the deceased and written arguments from both the prosecutor and the applicant’s counsel, the first respondent made a finding that there was prima facie evidence implicating the applicant. 
[19]	It is trite that if criminal proceedings are not instituted in connection with death arising from unnatural causes, an inquest is held in order to determine the circumstances and the cause of the death in question. In other words, an inquest can only commence once the Director of Public Prosecution (“the DPP”) or his representative has decided that no criminal proceedings are to be instituted. An inquest is not a replacement or a substitute for criminal proceedings. It is aimed at making a determination whether or not the prosecution of any person for having brought about the death of the deceased is called for, and to consider and make an assessment of the available evidence for that purpose. 

[20]	In Timol and Another v Magistrate, Johannesburg and Another 1972(2) SA 281 (T) at 287 H to 288 (A), the Appellate Division observed that ‘for the administration of justice to be complete and to instil confidence, it is necessary that, amongst other things, there should be an official investigation in every case where a person has died of unnatural causes, and the result of such investigation should be made known.’ Meanwhile in De'Ath (Substituted by Tiley) v Additional Magistrate, Cape Town 1988 (4) SA 769 (C) at p775G, it was said an inquest is not aimed at proving anyone's guilt, but is most certainly aimed at ensuring that, if possible, where guilt exists it will not remain hidden.

[21]	Section 16(2) of the Act enjoins a judicial officer holding an inquest to record a finding of the identity of the deceased person; the cause or likely cause of death; the date of death; and 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. The purpose which is served by an inquest was aptly described by the Appellate Division in Marais N.O. v Tiley 1990 (2) SA 899 (A) at 901 F-G as follows: 
‘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.’

[22]	Section 10 of the Act provides that unless the giving of oral evidence is dispensed with under this Act, an inquest shall be held in public. The injunction envisaged in this section that an inquest shall be held in public clearly implies that oral testimony must be heard. In Marais NO v Tiley (supra) the Appellate Division found that it would be purposeless to hold an inquest in public if only affidavits are to be admitted (in terms of s 13(1)) and no viva voce evidence is led. The court stated that the fact that oral evidence and a public inquest go hand in glove is also apparent from the wording of section 10. Properly interpreted, in the context of the Act, section 10 in effect provides that as a rule there should be a public inquest with oral evidence.

[23]	Section 13(2) of the Act gives a presiding officer an unfettered discretion to dispense with viva voce evidence. For the sake of completeness, the section provides: 
‘The judicial officer may in his discretion cause the person who made such statement to be subpoenaed to give oral evidence at the inquest or may cause written interrogatories to be submitted to him for reply, and such interrogatories and any reply thereto purporting to be a reply from such person shall likewise be admissible in evidence at the inquest.’

[24]	It must be stressed that an exercise of that judicial discretion deputed to the presiding officer must be exercised judiciously and not arbitrarily or capriciously. It must be exercised in such a manner that will assist the court to unravel the truth. The presiding officer must always bear in mind that justice must not only be done but must be seen to be done. In my view, an exercise of such discretion must be infused with constitutional values and must reflect the Bill of Rights in particular the right of access to courts envisaged in section 34 of the Constitution. Notably, section 39(2) of the Constitution enjoins the courts, tribunals or forums when interpreting any legislation, to promote the spirit, purport and objects of the Bill of Rights. This provision inter alia, requires judicial officers to read legislation, where possible, in ways which give effect to its fundamental values and in conformity with the Constitution. (See Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors: In Re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2000 (10) BCLR 1079 (CC) at para 22). In my view, this should be the starting point for every judicial officer when making a determination whether or not he should dispense with oral evidence in terms of section 13(2) of the Inquest Act. 

[25]	In this case, the DPP decided not to institute criminal prosecution but directed that an inquest be held and the DPP recommended to the magistrate to hear viva voce evidence. The DPP also informed the applicant’s legal representative that they are entitled to attend the hearing of the inquest, to lead evidence and to cross-examine witnesses. In addition, the DPP advised the applicant that he can make submissions to the magistrate regarding the finding that should be made. 

[26]	In my view, the recommendation of the DPP to the magistrate to hear viva voce evidence was in terms of section 8(1) of the Act which provide as follows: 
8. Witnesses and evidence at inquests.  ‘(1) The judicial officer who is to hold or holds an inquest may, of his own accord or at the request of any person who has a substantial and peculiar interest in the issue of the inquest, cause to be subpoenaed any person to give evidence or to produce any document or thing at the inquest: Provided that the said judicial officer shall, if so requested by the attorney-general within whose area of jurisdiction the inquest is to be held or is being held, cause persons or any particular person to be subpoenaed to give oral evidence in general or in respect of any particular matter at the inquest.’ (My emphasis)

[27]	In my opinion, the plain reading of this provision makes it abundantly clear that where a judicial officer is requested by the DPP to hear oral evidence, it becomes peremptory for him to hold a formal inquest. He cannot dispense with oral evidence in those circumstances. 

[28]	In this case, the magistrate informed the parties at the hearing of the inquest that he had decided to conduct an informal inquest and to decide the matter based on the statements of witnesses. He requested the parties to make oral submissions in open court. The daughter of the deceased who was in attendance, made oral submissions and contended that the applicant had a hand in the death of the deceased. She implored the court to consider hearing viva voce evidence so that the applicant can be examined under oaths. In response, Mr Tredoux who appeared on behalf of the applicant opposed this request and informed the court that the hearing of oral evidence would not change anything as the only witness who really knew what happened is the applicant. He further told the magistrate that the version of the applicant was not going to differ from what the magistrate had in front of him.
[29]	When these submissions were made, the applicant’s counsel was fully aware of all the allegations that were levelled against the applicant by the various witnesses who are referred to by the first respondent in his written finding. The first respondent accepted the submissions of the applicant’s counsel and decided the matter on the papers before him.

[30]	I am of the view that the decision of the magistrate to hold an informal inquest in this case despite the recommendations of the DPP and the request by the daughter of the deceased was wrong and mistaken. The first respondent was ordinarily under an obligation deputed to him by section 8(1) of the Act to call for oral evidence. To this end, I am in full agreement with the views expressed in Marais NO v Tiley 1990 (2) SA 899 (AD) p. 5,  where the court stated that 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. 

[31]	Notwithstanding, I must however emphasise that the fact that the first respondent failed to comply with the provisions of the Act does not mean that his decision must be reviewed by this court. The inquiry does not end there. The non-compliance with the statutory provision of the Act in my view does not in itself vitiates the inquests proceedings before the first respondent. Something more is required. The onus rests on the applicant to satisfy this court that the exercise of the first respondent’s discretion was so unreasonable, and so capricious such that it infringed on his fundamental rights. To this end, the dictum of Brink J in De Vos v Die Ringkommissie van die Ring van die N.G Kerk, Bloemfontein en Ander 1952 (2) SA 83 (O) at p.101 still hold sway. The court said: 
‘Die person wat beweer veronreg te wees moet verwys dat hy daardeur benadeel is en dat hy ‘n burgerlike reg of belang het wat deur die oortreding geskend word en wat die beskerming van die hof belang.’

[32]	It must be stressed that this court will not on review interfere with the decision of the first respondent merely because in its opinion the decision was wrong or unreasonable. It will only do so only if the possible inference is that the decision was arbitrary or mala fide – See Claassens v Landdros, Bloemfontein 1964(4) SA 4 (OFS) at 9B-D. Even if there was a technical breach of the statute the court will not interfere on review unless the applicant or any interested party can show prejudice. In my view, the applicant has not shown that he has suffered any prejudice pursuant to the decision of the first respondent to hold an informal inquest. This finding is fortified among others, by the fact that the applicant requested the first respondent to dispense with viva voice evidence. When making this submission, the applicant was duly assisted by his attorney and legal counsel. 

[33]	In addition, when these submissions were made, the applicant was aware of the evidence that was levelled against him by all the witnesses who were referred to by the first respondent in his written findings. Most importantly, the averments of these witnesses are based on what the applicant informed them on what happened to the deceased at the cliff. The first respondent decided to hold an informal inquest which decision was supported by the applicant. The first respondent subsequently made his findings based on the statements of witnesses which the applicant possessed. In my judgment and taking into account the totality of the facts before court, the applicant’s first ground of review must fail. This leads me to the last review ground.  
 
Did the magistrate fail to consider material evidence placed before him?

[34]	It was argued on behalf of the applicant that the first respondent came to a wrong conclusion in respect of his finding that the death of the deceased was brought about by an act or omission prima facie evidencing or amounting to an offence on the part of the applicant. It was further contended that the only reasonable inference to be drawn from the fact that the DPP decided not to institute a prosecution against the applicant in 2017 was because it was of the view that the evidence constituting the prosecution’s case was insufficient to establish a prima facie case of a crime having been committed by the applicant. Based on the DPP’s decision, it was submitted that the magistrate was wrong in finding on the exact same evidence that a prima facie case was established against the applicant.

[35]	This argument in my view misses the point. It should be borne in mind that this is not an appeal but a review application. There exists no right of appeal against the findings in an inquest. The standard of proof applicable in inquest proceedings is poles apart to the standard of proof applicable in criminal matters. In criminal matters the state must proof its case beyond reasonable doubt. (See S v Jackson 1998 (1) SACR 470 (SCA). While in inquest proceedings the question is whether a judicial officer holding the inquest is of the opinion that there is evidence available which could at a subsequent criminal trial be held to be credible and acceptable and which, if accepted, could prove that the death of the deceased was brought about by an act or omission which involved or amounted to the commission of a criminal offence on the part of some person or persons. (See In re Goniwe and others (2) 1994 (2) SACR 425 (SE).

[36]	In my view, having considered all the affidavits filed by the witnesses, the findings of the first respondent cannot be faulted. I am of the view that the first respondent was correct in finding that there is a prima facie case against the applicant. In addition, to the reasons the first respondent gave, I must stress the fact that the applicant gave conflicting versions of what transpired at the ravine. He made his first report to Ms Fortuin a receptionist at the Sanddrif Holiday Resort immediately after the alleged incident. He told her that his wife fell off her bicycle and he thinks that she may be dead because he felt her pulse and there was nothing and her limbs were also broken. 

[37]	Subsequent thereto, on the same morning he told other witnesses including the police, the rescue team in particular Mr Osmon that the deceased fell into the cliff after he took her photo. When Mr Osmon asked him to explain what happened, the applicant told him that they stopped to take photos and he was further up the road from where the deceased was. He was not standing by her and then he just heard her screaming and when he turned around she was gone. Ms Fortuin the receptionist and to whom the first report was made, averred in her affidavit that while she was in an adjoining office, she was surprised when she heard the applicant telling everyone that the deceased fell into a cliff while they were taking photos and there was no mention of her falling off a bike. The version the applicant gave to other witnesses was diametrically opposed to the version he gave the receptionist when he came for the first time seeking for help. 
[38]	The applicant has not given a plausible explanation on what really caused the deceased, an accomplished sportswoman to fall into the cliff. The deceased was a cyclist of note who won numerous competitions in the world including America. She was medically sound and physically fit. Her fall into the cliff was mysterious and demands an answer. She was with the applicant and he is the only one who can clearly explain what happened to the deceased. 

[39]	I must emphasise the fact that in his founding and supplementary affidavit, the applicant could not explain what really caused the deceased to fall into the cliff on such a clear and sunny day. The weather condition was good. The applicant averred that the wind was mild and there was nothing major. In my view, the applicant has to answer as to what caused the deceased to fall into the ravine. According to the applicant, they had a very good relationship. There is nothing that suggests that the deceased intentionally threw herself in the ravine. Something surely caused her to fall into the cliff and it is the applicant who must explain this in the right forum. 
 
[40]	Most importantly, the investigating officer averred in her statement that she asked the applicant to explain to her what he remembered. The applicant told her that he took a photo of the deceased sitting on the edge of the cliff and then he walked away from the deceased on a sandy path which lead to an outcrop of rock and he stood there when he suddenly heard the deceased just screaming and when he had turned, he saw her body falling over the edge of the cliff. When she investigated the sandy path which the applicant pointed to her she observed that there were no foot prints at all. She took pictures of the path and the applicant started to walk on the path. She stopped him from doing so. 
[41]	Furthermore, the applicant could not give a credible explanation of the two deep scratches under his eye which were observed by the investigating officer who arrived at the scene whilst the deceased was still lying in the cliff. Taking into account the facts of this case, I am of the view that there is no basis whatsoever warranting the setting aside of the decision of the first respondent.

ORDER

[42]	In the result, I propose the following order: 

The applicant’s application to review the findings of the first respondent is hereby dismissed. 

_________________________________
                             LEKHULENI J
JUDGE OF THE HIGH COURT

I agree and it is so ordered

_________________________________
     ALLIE J
JUDGE OF THE HIGH COURT