GUIDELINES FOR SUMMARISING CASES

• Like all summaries,a case summary is a shortened version of the original, which it must accurately reflect. So exclude all extraneous information, including your opinion. A summary is not the place to critique a case. You will have that opportunity in the case note and the argumentative essay. Include only the elements that impacted the outcome of the case.
• Identify each of the six components of the case, summarising them as concisely as possible. Use the marking guide to determine the amount of space you should allocate to each section.
• Include the main ideas only. A summary is the bare bones of a text. Do not flesh it out.
• Omit all detail such as examples, illustrations, and facts from past cases. Names, places and dates are usually irrelevant unless the issue is one of jurisdiction or prescription.
• Omit unnecessary introductory phrases (aka 'throat-clearing phrases') such as "After applying the law to the facts, the Court..."; "It is important to note that..."; "I will now discuss...".
• Omit adjectives & adverbs, e.g. essentially, basically, absolutely, completely, fundamentally, paramount, very.
• Use headings. They are a simple and effective way to provide structure and clarity to one's writing. They also help you organise your ideas and keep you on point.
• Edit, proofread, and cut your summary. Don't hand in your first draft.

WHAT TO INCLUDE IN YOUR CASE SUMMARY (REVISION)

Facts

In a few concise sentences, provide only the legally relevant facts - those that have a bearing on the outcome and issue. Omit all irrelevant facts and extraneous detail. To ensure you have included all and only the legally relevant facts, reassess the fact section once you have properly identified the issue, because the issue must include the legally relevant facts.

Issue

Correct identification of the issue is key for all the other sections. In a single-sentence 'yes-no' question or 'whether' statement, formulate the precise question of law that the court needs to answer to resolve the dispute. The issue must be comprehensive enough to address the specific facts of this case but formulated in general terms so it can be asked of future cases with similar fact patterns.

Sub-issues

Sometimes there areadditional issues or 'sub-issues' of the main issue. These sub-issues are questions that the court needs to answer to be able to answer the main issue. They might be the elements of the legislative rule, or the interpretation of a word in the Act. There can also be more than one distinct main issue that the court needs to address. Refer to all of them as 'issues', however. You do not need to distinguish between the issues and sub-issues in your assignments.

Ratio

The ratio is the legal principlethe court usestoresolve the issueand decide the case. The ratio could be an existing legal principle or a synthesised principle formulated by the court to address the specific facts of this case. The ratio that the court establishes then serves as precedent for future cases. Like the issue, the ratio must encompass the specific facts of this case but formulated in general (universal) terms so it can be applied to future cases with similar fact patterns.

Law

Include the legal principles that the court discussed, primarily those it relied on. For each principle, provide the name of the authority. Include only the name of the authority and the legal principle. Do not include the court's reasoning in the Law section. Order the sources of law from most to least important. For your FSAL case-summary assignment, you need to provide a separate section for the law. Generally this is unnecessary, as the law is incorporated in the reasoning section.

Reasoning

The reasoning process involves the applicationof the law to the factsand the arguments justifying the outcome of the case. It also includes a discussion around the merits or shortcomings of a legal principle, or its applicability to this case. Include the most important aspects of the court's reasons and rationale for its decision, briefly explaining how it arrived at its conclusion. If there are dissenting judgments, briefly identify the reasons for the disagreement. Structure this section around the legal principles used to resolve the issues. Sub-headings provide a roadmap for the reader and make the writing clearer. This is the most important section and therefore the longest. Nevertheless, write concisely.

Conclusion

Provide the outcome to the case: the court's decision (the resolution of the dispute), its ruling, and the order. If you wish, and you have the space, you could summarise the conclusion that the court drew from its arguments.

Van Heerden v Joubert NO1994 (4) SA 793 (A)

Judgment

Grosskopf JA:

An inquest was held in terms of the Inquests Act 58 of 1959 ('the Act') arising out of the death of the baby of the second and third respondents. The baby had died at about the time of its birth on 2 April 1988 in the Flora Clinic, Florida. The inquest was conducted by the first respondent, an additional magistrate for the district of Roodepoort (hereinafter referred to as 'the magistrate'). At the commencement of the proceedings on 6 December 1989, Dr Hawke, the specialist obstetrician and gynaecologist who had attended to the delivery of the baby, raised an objection to the magistrate's jurisdiction to hold the inquest. She contended that an inquest in terms of the Act could only be held into the death of a 'person', and submitted that as the baby was stillborn it was not a 'person' as contemplated in the Act. The magistrate overruled the objection. Dr Hawke then instituted review proceedings in the Transvaal Provincial Division to set aside the decision of the magistrate. The matter came before Zulman J, who refused the application and remitted the matter to the magistrate to enable him to determine as a matter of fact whether the baby was dead or alive at the time of its birth.

At the resumed inquest on 26 August 1991 the magistrate found on the evidence that the baby had indeed been stillborn, whereupon the appellants raised the same objection as to the jurisdiction which had previously been raised by Dr Hawke. (Both appellants were registered nurses in the employ of the clinic where the baby had been delivered and the first appellant had assisted at the birth.) They contended that once it was found that the baby was stillborn, the magistrate had no jurisdiction to continue with the inquest as the enquiry would not concern the death of a 'person'. The magistrate, however, decided on 27 August 1991 that, notwithstanding his finding that the baby was stillborn, he had jurisdiction to proceed with the matter. The appellants thereupon instituted proceedings in the Transvaal Provincial Division for reviewing and setting aside this decision of the magistrate. The matter was heard on 23 April 1992 by Heyns J, who refused the application with costs and ordered the magistrate to continue with the inquest until its final determination. The appellants now appeal with leave of the Court a quoagainst the whole of the order and judgment of that Court. The magistrate has intimated that he abides the decision of this Court.

The purpose of the Act as set out in the preamble is the following:

To provide for the holding of inquests in cases of deaths or alleged deaths apparently occurring from other than natural causes and for matters incidental thereto, . . .

It is clear from its provisions that the Act is only concerned with the death or alleged death of a 'person'. Section 2 imposes a duty on any person who has reason to believe that any other 'person' has died, and that death was due to other than natural causes, to report accordingly to a policeman. Section 3 makes provision for an investigation of the circumstances of any death by a policeman who has reason to believe that any 'person' has died and that such 'person' has died from other than natural causes. Section 4 requires the policeman investigating the circumstances of the death or alleged death of any 'person' to submit a report thereon, together with all relevant statements, documents and information, to the public prosecutor.

The Afrikaans text, which is the signed one, uses the following corresponding words for 'person', viz 'iemand', 'persoon' and 'oorledene'. The Act contains no definition of the word 'person' or any of its Afrikaans equivalents. The Interpretation Act 33 of 1957 is of no assistance in this regard. The essential enquiry, therefore, is whether the word 'person', as used in the Act, includes a stillborn baby.

I shall first consider some of the other provisions of the Act in order to establish the purpose of holding an inquest.

Section 5 sets out the circumstances in which an inquest is to be held. This section provides that where no criminal proceedings are instituted in connection with a death, the public prosecutor shall submit all the relevant statements, documents and information gathered in the course of the police investigation to a magistrate. Where it appears to the magistrate that such death was not due to natural causes he shall, subject to the directions of the Minister, take such steps as may be necessary to ensure that 'an inquest as to the circumstances and cause of the death' is held by a judicial officer.

The judicial officer holding the inquest is obliged in terms of s 16(2) of the Act to record a finding as to the identity of the deceased, the cause or likely cause of death, the date of death, and whether the death was brought about by any act or omission prima facieamounting to an offence on the part of any person.

The main objects of an inquest are therefore to determine the cause of death, the circumstances surrounding the death, whether any person was responsible for such death, and whether the death can be attributed to the commission of any offence. (See Claassens en 'n Ander v Landdros, Bloemfontein en 'n Ander1964 (4) SA 4 (O) at 10D-F; Timol and Another v Magistrate, Johannesburg, and Another1972 (2) SA 281 (T) at 287H-288A; Marais NO v Tiley1990 (2) SA 899 (A) at 901E-F, 902A-B.) In Marais NO v Tiley (supra)this Court also emphasised the important underlying purpose of an inquest at 901F-G:

"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."

The State has an interest in the proper investigation of deaths due to other than natural causes. Even if nobody can be held responsible for a death in a particular case, it may still remain pertinent to determine the circumstances and cause of death in order that appropriate measures can be taken to prevent similar occurrences. There might therefore be reasons to proceed with an inquest in the present case. The question however remains whether the provisions of the Act are wide enough to confer jurisdiction upon the magistrate to do so. That in turn depends on the meaning of the word 'person' in the context of the Act.

The general rule in the construction of statutes is that the ordinary grammatical meaning of the words used must be adhered to. (Union Government (Minister of Finance) v Mack1917 AD 731 at 739; Du Plessis v Joubert1968 (1) SA 585 (A) at 594H-595B; Ebrahim v Minister of the Interior1977 (1) SA 665 (A) at 678A-G; Summit Industrial Corporation v Claimants against the Fund Comprising the Proceeds of the Sale of the MV Jade Transporter1987 (2) SA 583 (A) at 596G-597B; Public Carriers Association and Others v Toll Road Concessionaries (Pty) Ltd and Others1990 (1) SA 925 (A) at 942I-943A.) Where the language of a statute is unambiguous and its meaning clear the court may only depart from the ordinary meaning if it leads to absurdity so glaring that it could never have been contemplated by the Legislature. (See Venter v R1907 TS 910 at 913-15, and the cases referred to above.) In my view, this is not a case where it would lead to any absurdity if the Court should give the word 'person' its ordinary literal meaning. This Court has often warned against the danger of speculating as to the intention of the Legislature, thereby departing from the literal meaning of the words of a statute. (Dadoo Ltd and Others v Krugersdorp Municipal Council1920 AD 530 at 554-5; Shenker v The Master and Another1936 AD 136 at 143; Savage v Commissioner for Inland Revenue1951 (4) SA 400 (A) at 409A; Summit Industrial Corporation (supraat 596J-597A).)

In the Public Carriers Associationcase supraat 943C-944F, this Court adopted a 'purposive construction' to resolve an ambiguity in a statute, but to my mind the word 'person' is not ambiguous in the context of the Act, and a purposive construction would in any event not lead to a different conclusion in this case.

According to The Oxford English Dictionary2nd ed (1989) the word 'person' has the following meanings (but excluding its meaning in law, theology, grammar and zoology):

1. A character sustained or assumed in a drama or the like, or in actual life; 2. An individual human being; a man, woman or child;3. The living body of a human being.

The first meaning of the word 'person' given in Webster's Third New International Dictionary of the English Language(1966) is the following: "An individual human being . . . as distinguished from an animal or thing."

Much to the same effect are the meanings of the word 'person' set out in the American Heritage Dictionary of the English Language(1981):

1. A living human being, especially as distinguished from an animal or thing; . . . .

4. The living body of a human being.

HAT (Verklarende Handwoordeboek van die Afrikaanse Taal)2nd ed (1992) gives the following meanings of the Afrikaans word 'persoon' (again excluding its meaning in law, grammar and theology):

1. Mens, individu, enkeling wat selfstandig handel, optree; 2. Iemand se liggaam;3. Speler in 'n toneelstuk, figuur in 'n roman.

The meaning of the Afrikaans word 'iemand' according to HATis:

1. Die een of die ander persoon;2. Enige mens, wie ook al;3. 'n Persoon;4. 'n Persoon van aansien, betekenis.

There is no suggestion in any of these dictionary meanings that the word 'person' can also connote a stillborn child, an unborn child, a viable unborn child, an unborn human being, or a living foetus.

In S v Tlali1964 (1) PH H83 (O) the Full Bench (Potgieter and Smuts JJ) had to construe the words 'person' and 'iemand' in a statute, and came to the following conclusion:

"The Legislature intended serious bodily injury to a living person. That was the ordinary connotation of the word "person". The Afrikaans text was signed by the Governor-General and there the word "iemand" was used. There was no doubt, however, that in this section the word "iemand" was synonymous with the word "person". Compare Bosman, Van der Merwe en Hiemstra Tweetalige Woordeboek sv "iemand". It could never be used in connection with a corpse."

The word 'iemand' could for the same reason not be used to describe an unborn child in the context of the Act.

I am conscious of the dangers inherent in placing any reliance on the meaning ascribed to a particular word in the context of another statute, and especially that of a foreign country. Craies on Statute Law7th ed (1971) has sounded the following warning in this regard at 164:

"In construing a word in an Act caution is necessary in adopting the meaning ascribed to the word in other Acts."

I shall nevertheless refer to the construction which the American Supreme Court and the Court of Appeal in England have placed on the word 'person' in the context of different statutes. In the case of Roe v Wade410 US 113 (1973) the Supreme Court was called upon to decide on the constitutionality of the Texas criminal abortion laws. In the course of the argument it was submitted that a foetus was a 'person' within the language and meaning of the Fourteenth Amendment, but the majority of the Court (at 156-8) was not persuaded that the word 'person' also included the unborn. In R v Tait[1990] 1 QB 290 (CA) the Court of Appeal held that a threat to a pregnant woman to kill her foetus was not a threat to kill a 'person' under the Offences against the Person Act 1861. I am likewise of the view that the word 'person' in the context of the present Act does not include an unborn child.

Argument was addressed to us on the question of legal personality or legal subjectivity. Appellants' counsel submitted that until born alive a child has no legal personality according to the common law. Reliance was placed, inter alia, on D25.4.1.1. (partus enim antequam edatur, mulieris portio est vel viscerum, 'for the child is a part of the woman, or of her entrails, before it is born'); and Voet1.5.5 (Gane'stranslation):

'As to those having their being in the womb, it may be that on account of the uncertainty of birth they cannot yet fall properly under the term "human person" . . . .'

See, further, Boberg Law of Persons and the Family(1977) at 8 (. . . 'a child stillborn neither is, nor ever was, a person'); Olivier The South African Law of Persons and Family Law2nd ed (1980) at 27-8; Van der Vyver and Joubert Persone- en Familiereg3rd ed (1991) at 59-60.

Counsel for the second and third respondents, on the other hand, relied on the judgment in Pinchin and Another NO v Santam Insurance Co Ltd1963 (2) SA 254 (W) where the Court decided at 260B that a child has an action to recover delictual damages for prenatal injuries. .....

I am nevertheless convinced that the Legislature never had any such legal persona in mind when it used the word 'person' in the Act. Were it otherwise, the Legislature would surely have made an attempt to address some of the obvious problems which such an extended meaning of the word 'person' would entail. It may, for instance, have a far-reaching effect on the law relating to abortion. Medical practitioners performing legalised abortions, and the nursing staff assisting them, may find themselves involved in inquests if the meaning of the word 'person' were to be extended. ....

In my opinion the Act does not make provision for an inquest into the death of a stillborn child, and it is not for us to extend the application of the Act by going beyond the ordinary meaning of the word 'person'.

In my judgment the appeal should accordingly be upheld.

The following order is made:1. The appeal is upheld with costs.2. The order of the Court a quois set aside and there is substituted therefor the following:

'(a)An order declaring that the first respondent has no jurisdiction to continue with an inquest in terms of the Inquests Act 58 of 1959 into the death of the stillborn child to which the third respondent gave birth at the Flora Clinic on 2 April 1988.

(b)An order setting aside the decision of the first respondent on 27 August 1991 to the effect that he had jurisdiction to continue with the inquest into the death of the said stillborn child....