- The High Court refused to review the magistrate’s inquest, prompting an appeal to the Supreme Court of Appeal, which upheld the appeal with no costs.
- The magistrate’s inquest dispensed with oral evidence despite requests from the Director of Public Prosecutions and the deceased’s daughter, leading to procedural unfairness.
- The matter is remitted to Clanwilliam Magistrates’ Court for a public inquest with oral testimony to determine the circumstances of the death.
The Supreme Court of Appeal (SCA) has ordered a fresh inquest into the death of Theresa Wampach-Todd after finding that the magistrate in Clanwilliam failed to comply with the law by not holding a public hearing or hearing oral evidence.
Wampach-Todd fell to her death from a cliff in the Cederberg Mountains in the Western Cape in 2016. Her husband, Sean Todd, was initially singled out by the magistrate as potentially responsible, based solely on police docket statements rather than oral testimony or a full hearing.
Acting Judge RCA Henney explained that this approach was flawed. “The magistrate, having formed a prima facie view, based on the affidavits placed before him, of a possibility of an adverse finding against Mr Todd, had to draw his attention to that possibility,” Judge Henney said. “At the very least, Mr Todd should have been afforded the opportunity to challenge the circumstantial evidence from which inferences were drawn that resulted in the magistrate’s findings.”
After the magistrate made the finding, Todd sought a review in the Western Cape High Court, which refused to overturn the magistrate’s decision. This refusal meant that the appeal went directly to the SCA, which found that the decision was reviewable under the constitutional principle of legality. It then set aside the magistrate’s proceedings.
Review powers rooted in principle of legality
The SCA stressed that inquests are not ordinary court proceedings but exercises of public power. Judge Henney noted that while the Inquests Act does not provide a general review mechanism, “the power of a court to review inquest proceedings, that cannot be characterised as administrative action, is to be found in the constitutional principle of legality, enshrined in Section 1 of the Constitution”, which sets out the founding values of South Africa’s constitutional democracy.
The court cited Pharmaceutical Manufacturers Association v President of the Republic of South Africa: “The control of public power by the courts through judicial review is and always has been a constitutional matter… The common law principles that previously provided the grounds for judicial review of public power have been subsumed under the Constitution.”
Requests for oral evidence ignored
The magistrate’s decision to proceed without hearing witnesses ignored requests from both the Director of Public Prosecutions and the deceased’s daughter, Kendal Victor. Judge Henney noted, “The DPP’s recommendation to hear the evidence viva voce is nothing but a polite way of requesting the magistrate to do so.”
The court found no exceptional circumstances justifying this departure. Judge Henney stated, “There was clearly a dispute of fact as to the precise manner in which the deceased died. Mr Todd’s version of the events was inconsistent with the facts that appeared in the inquest docket on which the magistrate made his findings.”
He added, “The magistrate also acted procedurally unfairly when he, prior to making his finding, formed a definitive view that he would be making an adverse finding against Mr Todd without affording him an opportunity to persuade him otherwise.”
Appeal upheld, matter remitted
The SCA set aside both the magistrate’s findings and the High Court’s refusal to review. Judge Henney concluded, “The proceedings of the inquest magistrate are set aside. The finding of the magistrate in terms of Section 16(2)(d) of the Inquest Act 58 of 1959 is set aside.”
The matter has been remitted to the Clanwilliam Magistrates’ Court for a new inquest. The SCA ordered that another judicial officer be appointed within 30 days to hold a public inquest and to hear oral evidence regarding the circumstances of the death, to be conducted expeditiously and without undue delay.
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