Todd v Magistrate: Clanwilliam and Others

On 14 January 2016, Ms Theresa Wampach-Todd (the deceased) died after falling from a cliff in the Cederberg Mountains, Clanwilliam, Western Cape. Her husband, Mr Sean David Todd (the appellant), was the only person present when the incident occurred. Following a police investigation, the Director of Public Prosecutions (DPP) requested on 22 June 2017 that a public inquest be held with oral evidence in terms of s 8(1) of the Inquests Act 58 of 1959. A previous magistrate had also decided that oral evidence should be heard. However, on 1 November 2018, the magistrate presiding over the inquest decided not to hold a public inquest or hear oral evidence, but instead to proceed based on statements in the police docket. On 24 January 2019, the inquest proceeded with only written submissions. The deceased's daughter from a previous marriage, Mrs Kendal Victor, made oral submissions (not under oath) requesting that oral evidence be heard and questioning Mr Todd's version of events. On 27 May 2019, the magistrate made a finding in terms of s 16(2)(d) of the Act that the deceased's death was brought about by an act or omission of Mr Todd prima facie involving or amounting to an offence, based on circumstantial evidence including Mr Todd's conduct after the incident, his demeanor, alleged tampering with the scene, and expert opinions about the injuries sustained by the deceased. Mr Todd applied to the High Court to review and set aside this finding, but the application was dismissed on 23 February 2022. Leave to appeal was refused on 19 August 2022. Mr Todd then obtained leave to appeal from the Supreme Court of Appeal.

• Whether the magistrate misdirected himself by not holding a public inquest and hearing oral evidence despite requests from the DPP and an interested party
• Whether the principle of legality in terms of s 1(c) of the Constitution is the source of the high court's powers of review in respect of inquest proceedings in the constitutional era
• Whether the inquest proceedings were vitiated by material irregularities
• Whether the matter should be remitted for a fresh inquest before a different judicial officer
• The proper interpretation and application of sections 8(1), 10(1) and 13(1) of the Inquests Act 58 of 1959
• Whether the appellant suffered prejudice from the magistrate's decision not to hear oral evidence

1. The appeal is upheld with no order as to costs. 2. The order of the Western Cape Division of the High Court, Cape Town, is set aside and replaced with the following order: '1 The proceedings of the inquest magistrate are set aside. 2 The finding of the magistrate in terms of s 16(2)(d) of the Inquest Act 58 of 1959 is set aside.' 3. The matter is remitted back to the Magistrates' Court, Clanwilliam, for the appointment of another judicial officer within 30 days of this order to hold a public inquest and to hear oral evidence regarding the circumstances surrounding the death of the deceased expeditiously and without any undue delay.

1. In the constitutional era, the high court's power to review inquest proceedings is sourced in the constitutional principle of legality enshrined in s 1(c) of the Constitution, as common law review powers have been subsumed by the Constitution. 2. Inquest proceedings constitute the exercise of public power which must be exercised within the confines of the Constitution and the law, particularly the Inquests Act. 3. The default position under s 10(1) of the Inquests Act is that an inquest shall be held in public with oral evidence. A magistrate may only dispense with oral evidence under s 13(1) where exceptional circumstances exist - where affidavits do not raise relevant disputes of fact and are conclusive on all relevant matters, or strongly point to death not being caused by an offence. 4. The proviso to s 8(1) of the Inquests Act is peremptory: a magistrate shall call for oral evidence if requested by the Director of Public Prosecutions, unless there are compelling circumstances not to do so. 5. A magistrate must also give due consideration to requests for oral evidence from persons with a substantial and peculiar interest in the inquest. 6. Where a magistrate forms a prima facie view of making an adverse finding against a person that could lead to criminal prosecution, procedural fairness requires that the person be afforded an opportunity to challenge the evidence and persuade the magistrate otherwise, particularly through oral testimony. 7. A decision by a magistrate to dispense with a public inquest and oral evidence in the absence of exceptional circumstances, without reasons, in contravention of statutory obligations, and where disputes of fact exist, is arbitrary and constitutes a reviewable irregularity that vitiates the inquest proceedings.

1. Inquest proceedings are not administrative action under s 33 of the Constitution and PAJA does not apply, as the powers exercised are both investigative and adjudicative in nature rather than purely administrative. 2. Inquest proceedings are not court proceedings and a magistrate conducting an inquest does not sit as a magistrate exercising powers under the Magistrates' Court Act 32 of 1944. Consequently, s 22 of the Superior Courts Act (which provides for review of magistrates' court proceedings) does not apply to inquests. 3. An inquest is characterized as "an official investigation into a death which occurred otherwise than from natural causes, which has not been the subject to a criminal prosecution." It is akin to a judicial commission of enquiry investigating matters of public concern. 4. The findings of a judicial officer in inquest proceedings are not binding. The DPP is not obliged to institute criminal proceedings based on a finding made in terms of s 16(2)(d) of the Act. 5. The requirement that an inquest be held in public clearly implies that oral testimony must be heard, as it would be purposeless to hold an inquest in public if only affidavits are to be admitted. 6. The hearing of evidence in inquest proceedings which is open and in public accords with the basic tenet of our law that justice must be seen to be done. 7. The Court distinguished the case from Claassens v Landdros Bloemfontein, noting that the judge in that case did not have the benefit of the guidance provided in Marais NO v Tilley, and that in Claassens some oral evidence had been heard and witnesses whose statements were admitted were unlikely to assist the magistrate. 8. An order of substitution (replacing an adverse finding with a favorable one) is an extraordinary remedy which would not be suitable where it would perpetuate the illegality complained of by also being based on affidavits without oral evidence.

This case is significant in South African jurisprudence for several reasons: 1. Constitutional Foundation of Review Powers: It clarifies that in the post-constitutional era, the high court's power to review inquest proceedings is grounded in the constitutional principle of legality (s 1(c) of the Constitution) rather than common law inherent powers. This aligns inquest reviews with the broader constitutional framework established in Pharmaceutical Manufacturers. 2. Inquest Procedure: It reaffirms and applies the important principles from Marais NO v Tilley regarding the default requirement for public inquests with oral evidence, emphasizing that departures require exceptional circumstances. 3. Mandatory Nature of DPP Requests: It establishes that requests by the DPP under s 8(1) of the Inquests Act for oral evidence are peremptory ("shall"), not discretionary, absent compelling circumstances. 4. Procedural Fairness in Inquests: It reinforces that even though inquests are investigative rather than adversarial proceedings, basic procedural fairness requires that a person against whom an adverse finding may be made must be given an opportunity to respond, particularly through oral evidence where disputes of fact exist. 5. Exercise of Public Power: It confirms that judicial officers conducting inquests exercise public power that must comply with constitutional standards and the rule of law, similar to judicial commissions of inquiry. 6. Practical Impact: The judgment provides important guidance to magistrates conducting inquests, emphasizing the need for transparency, public proceedings, oral evidence in contested matters, and compliance with statutory obligations and requests from the DPP and interested parties.