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SIMULTANEOUS DEATH : ARBITRARY FACT?

STEFAN DE BEER

2007008507

RSK 424

2012

MR. JT FABER

DEPARTMENT PRIVATE LAW

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TABLE OF CONTENT No. Content Page

1. Introduction 4 – 5

2. Commorientes 6 – 17

1. General. 6 – 8

2. The United Kingdom on simultaneous death:

Legislation, regulations and case law. 8 – 10

3. The position of other countries pertaining

to commorientes. 11 – 16

3.1. The position in France 11

3.2. Italy, India, Australia and Germany 11

3.3. The United States of America 11 – 14

3.4. New Zealand 14

4. A South African take on commorientes in

relation to the positions held in other countries 14 – 17

3. Medicine and death 18 – 27

1. Life 18 – 19

2. Death 20 – 26

2.1. Medical definitions of the types of death 20 – 22

2.1.1. Clinical death 22 – 24

2.1.2. Brain death 24 – 26

2.2. Statutory definitions of death and related

matters 26 – 27

4. Time 28 – 39

1. General 28

2. The legal and religious philosophy of time 29 – 33

2.1 St. Augustine 29

2.2. Summary of Religious views on time 30

2.3. Immanuel Kant 31 – 33

3. Time: The Science of Fact 33 – 39

3.1. Time in Physics and Biology and the

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measurement thereof 35 – 39

5. Conclusion 40 – 43

6. Bibliography 44 – 49.

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CHAPTER 1 : INTRODUCTION

The South African legal system, though uncodified, is a system that maintains

legal certainty through its numerous sources and specialized application. There

are, however, a few subjects that still cause uncertainty due to the lack of works

on such subjects. One of those subjects is commorientes or simultaneous death.

The South African law makes no provision for any presumptions of death or

simultaneous death. The effect of such lack of presumptions can be seen at the

hand of an example:

It is 10 October 2006 and a misty cloud hangs over Durban, South Africa. Three

persons board a small, four seater, aeroplane and head in the direction of

Bloemfontein, their ultimate destination. The occupants are the pilot, his mother

and an acquaintance of theirs.

In a tragic accident, the plane hits the Drakensberg mountains, killing all of the

occupants instantly. What follows seems unbecoming of a legal system based on

reasonability and fairness.

Legal action is instituted in the Free State High Court under case number

4479/09. The only beneficiary of the mother’s estate sues the estate of her

wealthy son claiming that she survived him, even if it was for a small period of

time, and therefore the whole of the son/pilot’s estate must pass to him as his

mother was a beneficiary in his last will and testament.

With the impact, forces and speed involved, it is believed that all the occupants of

the plane’s organs burst even before their bodies hit the mountain. How can

anyone go as far as stating that these people died anything other than

simultaneously?

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The question remains unanswered as almost four years after the issuing of the

summons, millions of rand in legal and expert witness fees, the case is still

ongoing and the question remains unanswered.

Is the question of simultaneous death really this difficult to answer? Is there no

other way to ensure that the law does not stagnate by falling back into the legal

principles of centuries ago?

By investigating and comparing the positions of various legal systems, the

various types of death and the concept of time, certainty as to the complicated

nature of commorientes will be achieved.

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CHAPTER 2 : COMMORIENTES

1. General

The concept of commorientes is a universally recognised concept across legal

systems with its origin in the common law. Due to the uncertain, and at times

impractical nature of the term, it is governed by statute in modern law.

The Latin term refers to two or more people who die, often in a common disaster,

in circumstances where there is uncertainty as to the order of their deaths. By

extension, it also refers to the event where two or more people die in relevant

circumstances.1 This term would find special application in the event that people

die in a shared tragedy such as motor vehicle accidents,2 shipwreck,3 aeroplane

crashes,4 exploding bombs,5 etc. It is with the utmost care and yet logical

inference that one can assume uncertainty as to whether the order of the deaths

of two or more people can be classified as simultaneous death.

In the Trilingual Legal Dictionary, V.G. Hiemstra, H.L. Gonin, 3rd Edition, under

the word “commorientes” the English translation is stated as: “parties dying

simultaneously (in consequence of the same calamity)”.6

The Shorter Oxford English Dictionary defines “simultaneous” as: “1. Existing,

happening, occurring, operating, etc at the same time; coincident in time; the

simultaneous use of both eyes...”

In the same dictionary under the word “contemporaneous”, the following

definition is found: “1. Existing or occurring at the same time...”7 1 The legal issues discussed in this chapter can arise even where there has been no common disaster. In the

English case of Wing v Angrave (1860) 8 H.L.C. 183 at 208-209, Lord Campbell L.C. referred to the

hypothetical case where a husband’s ship was lost at an unknown point in his voyage and his wife died at

home about the same time. Note the similar remarks in Cf. Re Albert (1967) V.R. 875 per Viscount Simon

L.C. 2 Greyling NO v Greyling NO en andere 1978 2 SA 114 T.

3 Ex parte Bagshaw 1943 2 PH F77.

4 Ex parte Graham 1963 4 SA 145 D.

5 Hickman and Others v Peacey and Others 1945 AD:304.

6 Juta, 2008:166.

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In legal systems across the globe, the concept of commorientes is often

synonymous with various presumptions of death. The South African position,

however, is that in the event of persons dying simultaneously, there are no

presumptions whatsoever and should the question of time of death be answered

factually.8 Van der Merwe and Rowland,9 are correct in their discussion on all the

common law presumptions which no longer apply in modern law.

The main problem with the practical division and distribution of the assets of

deceased estates is unsolved as yet, with only a few arbitrary rules of law

regulating the position in South African law as well as the position of countries

across the globe. The necessity to solve the challenges that this intricate position

or question poses can be confirmed by scrutinizing the three possible views:

(1) a presumption that one party had survived; (2) a presumption that death had

been simultaneous; and (3) that the law should not indulge in any presumption.

Due to the wide implications of simultaneous deaths on the legal positions of

testate and intestate heirs, South African law has taken the stance that people

who die simultaneously are not able to inherit mutually from one another.10

Various issues arise when interpreting dispositions in wills of the commorientes

or, in the case of intestate succession, operation of the rules of intestacy. For

example, if X has left property to Y, it is crucial to know which of the two survived

longest as the bequethal to Y would lapse if Y died first.11

7 Oxford University Press, 2007.

8 Nepgen v Van Dyk 1940 EDL 123; Ex parte Martienssen 1944 CPD 139; Ex parte Chodos 1948 4 SA 221

N; Ex parte Graham 1963 4 SA 145 D; Greyling v Greyling 1978 2 SA 114 T 9 1990:19

10 Cronjé and Roos 2002:7.

11 Further issues would arise in the following hypothetical scenarios:

a.) X leaves property for Y with a proviso that the property should pass to Z in the event that Y dies

in X’s lifetime;

b.) Where the commorientes hold property under a joint tenancy, the question of who survived the

longest would also be of the utmost importance as the said property should pass to the estate of the

last surviving joint tenant. See in general Bradshaw v Toulmin 1784 2. Dick. 633, 21 Eng. Rep.

41.

c.) Where X leaves property to Y, to the exclusion of all of his intestate heirs, having this property

pass to his intestate heirs seems rather contrary to his wishes.

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As is the case with many complicated legal topics of discussion, a clearer view of

the essence of the global stance and arguments can be obtained when

comparing the South African position with those of other legal systems.

2. The United Kingdom on simultaneous death: Legislation, regulations

and case law

In Northern Ireland, as is the case with many modern judiciaries, the common

law position still applies in the absence of legislation. Grattan,12 summarised the

Northern Irish position as follows: “when the order in which two persons died

cannot be satisfactorily determined, neither is deemed to have survived the

other, with the result that their estates cannot benefit from each other.”13 As can

be seen throughout this chapter, the English law is considered to be the most

influencial when it comes to the recognition of commorientes in many systems of

law.

The rule applicable was established in 1870 and it was explained by Sir GM

Giffard L.J. as follows: “those who found a right upon a person having survived a

particular period must establish that fact affirmatively by evidence.”14 An initial

reading of the extract from the Re Phené’s Trusts case tends to indicate that the

burden of proof is more strict than the ordinary standard of civil matters based on

a balance of probabilities, but was the stance on the burden of proof clarified by

Lord Chelmsford in the landmark case of Wing v Angrave.15 With reference to

Kearns J’s judgment in the case of Re Kennedy,16 Lord Leechman, however,

explained that the use of the word ‘uncertainty’ was “adequately explained by its

aptness to describe the factual situation arrived at where, assuming a judicial 12

Grattan 1996:157. 13

See also Maxwell 1984:391-393. 14

Re Phené’s Trusts 1870 5 Ch. App. 139 at 152. 15

1860, 8 H.L.C. 183 at 221, where Lord Chelmsford stated that uncertainty as to the order of deaths of

parties “leaves no greater weight on one side or another to incline the balance of evidence either way”. See

also the judgment of Kearns J. in Re Kennedy 2000, 2 I.R. 571 at 575 where, on the interpretation of section

5 of the Succession Act 1965, he stated: “where the evidence adduced falls short of eliminating an element

of uncertainty, then the presumption in the section must apply. This may seem equivalent to or stricter than

the ‘proof beyond reasonable doubt’ test appropriate to criminal standards of proof, but in reality it is

nothing more than the onus of proof necessarily to be derived from the wording of the section.

‘Uncertainty’, it seems to me can only be displaced by ‘certainty’.” 16

2000 2 I.R. 571.

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process, and assuming that the normal standard of proof has been applied

thereto, the evidence is yet evenly balanced upon which, if either of two persons,

has survived the other”.17

In another leading authority in the English law, Underwood v Wing,18 the issue of

commorientes was found not to be based on any form of presumption or

assumption. Both these cases were concerned with a husband and wife being

swept from a sinking ship by the same wave. The husband left all of his property

to his wife, with a provision that if she was to die in his lifetime, it had to pass to a

certain Mr. Wing. Similarly, Wing was to benefit under the exact same provision

in the wife’s will that initially indicated her husband as beneficiary. In order for

Wing to receive any benefit from any of the two estates, he had to prove that

either one survived the other for a period of time. Wing was, in any event, unable

to prove that either the husband or the wife survived for any given period and

could therefore not benefit from either of the deceased estates.

The Republic of Ireland has laid down this very complicated position in the form

of legislation.19 Section 5 of the Act provides that where “two or more persons

have died in circumstances rendering it uncertain which of them survived the

other or others, then, for the purpose of the distribution of the estate of any of

them, they shall be deemed to have died simultaneously.”20

In contrast to this legislative provision, the relevant English legislation “applies for

all purposes affecting the title to property”.21

In Northern Ireland, clause 50 of the Draft Land Law Reform Bill,22 provides more

specifically for the instances where the commorientes were joint tenants

immediately prior to their simultaneous deaths. 17

Lamb v Advocate General 1976 S.C. 110:120. 18

1855, 4 De G.M. & G. 633. 19

The Succession Act 1965 20

This provision is derived from Art.20 of the German Civil Code as amended in 1951. See also Discussion

Document No.4, 1983, p.130, where the Northern Ireland Land Law Working Group commented in respect

of this provision: “A statutory presumption along these lines is a distinct advance on the common law

position, because the common law, by leaving the possible sequence of deaths open to argument,

practically invites litigation. A presumption gives a firm starting point and can be displaced only by

positive evidence.” 21

Law of Property Act 1925: sec 184.

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The House of Lords in Hickman v Peacey,23 laid down what ultimately became

the landmark English commorientes case when it gave clarity on the

interpretation of legislation pertaining to simultaneous death. In the Hickman

case four persons had been killed by the explosion of a bomb which had

destroyed an air-raid shelter in which the persons concerned had taken refuge.

There was no evidence to show whether any of the deceased had survived the

other and it was contended that the common law rule, that the representatives of

the donee who claim under the will must prove that in fact the donee survived the

testator, still prevails if the deaths were simultaneous. This argument was

rejected by a bare majority of the House of Lords and the simple rule laid down

that unless it was possible to say for certain which of the persons died first, the

younger is presumed to have survived. It was held per Lord Macmillan, Lord

Porter and Lord Simonds, Viscount Simon L.C. and Lord Wright dissenting that

in the absence of such evidence, they had died in circumstances rendering it uncertain which of them survived the other or others within the meaning of section 184 of the Law of Property Act, 1925, and that accordingly, in the administration of their estates by the executors of the respective will, the younger of the deceased should be deemed to have survived the other.

The statutory presumption provided for by Section 184 of the Law of Property Act

is "subject to any order of the Court" and the Courts in England have taken the

view that the presumption is to prevail until there is evidence to remove the

presumption.24 On the whole, however, it must be concluded that the

presumption in section 184 is essentially one of convenience, with no firm basis

in probability.

It is safe to infer that in the United Kingdom, the position on commorientes has

undergone a paradigm shift from relying on common law presumptions towards

reliance on legislation. Author is, however, of the opinion that although the shift

seems to be towards legal certainty, the basic question of feasibility still remains

unanswered.

22

Proposed by the Northern Ireland Law Commission in its Report: Land Law (NILC 8, 2010) 23

1945 A.D. 304. 24

Jayantilal Mansukhlal and Anr. v Mehta Chhanalal Ambalal AIR 1968 Guj 212, 1968 0 GLR 129

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3. The positions of other countries pertaining to commorientes

3.1. The position in France

For the sake of comprehensiveness, author refers to applicable assumptions and

positions from other legal systems across the globe. In France, the Napoleonic

Code,25 is enshrined in a number of elaborate presumptions based on, amongst

other things, age and sex. For example, it regards the youngest person as

surviving where all the deceased were over the age of 60 years, but the eldest

when all were under the age of 15 years. Where the deceased were all aged

between 15 and 59, the male is presumed to survive the female. Where all the

commorientes were male or female, the youngest was presumed to have

survived. The presumptions contained in the Napoleonic Code were adopted by

various other systems of law, including the State of Louisiana,26 Puerto Rico and

the Philippines.27

3.2. Italy, India, Austria and Germany

In the Mohammedan Law of India,28 the Austrian Civil Code,29 the German Civil

Code30 and the Italian Civil Code,31 the presumption is that death, in the event of

it resulting due to common tragedy or the same blow, occurred simultaneously.32

3.3. The United States of America

In the State of New York, the recourse and remedies available to litigants are of

arbitrary rules of law.33 It is primarily based on the English cases of Wood v

25

Wright 1908:720-722. 26

See Law Reform Commission of British Columbia Report on Presumptions of Survivorship LRC-56

October 1982:23-24. 27

See Wigmore 1981:620. 28

See Cowman v Rogers, 73 Md. 403, 21 Atl. 64 1891. 29

1891 Part I, First Title, III, Art. 25. 30

Book I, Part I, Title I, Art. 20. 31

Liber I, Title I, Art. 4. 32

Conway and Bertsche 1944:19. 33

Conway and Bertsche 1944:18.

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Angrave,34 Underwood v Wing,35 Angrave v Wing.36 In the Matter of Burza,37 the

presiding Judge summarized the common law rule applicable to the case of the

death of two persons in a common disaster, as applied in practice in the New

York jurisdiction:

1.) There is no presumption either of survivorship or of simultaneous death. 2.) There is no presumption of a survivorship from difference in age, sex or even relative

strength. 3.) Proof of the facts and circumstances concerning the survival of one or the other must be

adduced. In the absence of proof of facts and circumstances, the test of experts is sheer speculation and must be disregarded.38

4.) The party asserting survivorship has the burden of proving it.

The above is the prevailing rule in most of the United States, generally as a

matter of common law,39 but also through express statutory declaration in

some.40

The New York Simultaneous Death Law41 provides as follows:

Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as otherwise provided.”42

Section 17 of the New York Deceased Estate Law confirms the technical nature

of the question as to who survived who, what relevance of such question is to the

distribution of property and in essence seems to support the arbitrary nature of

law in these cases. The judgment in St. John v Andrews Institute,43 despite being

delivered some 18 years prior to the enactment of the New York Deceased

Estate Law as well as 32 years before the Uniform Simultaneous Death Act, is

34

1860, 8 H.L.C. 183 at 397. 35

1855, 4 De G.M. & G. 633. 36

1860, 8 H.L.C. 183 at 221. 37

1934, 151 Misc. 577, 272 N.Y. Supp. 248. 38

Own emphasis. 39

Chapman 1914:585. 40

See for example Georgia Code Annotated 1933, extracts from Code 113-906 which reads: “property of

each commorient shall descend to the respective heirs, excluding each as heir of the other”; “this section

only operates when descendents could inherit from each other”; “death in common disaster not required.” 41

N.Y. Deceased Estate Law section 89(1); Uniform Simultaneous Death Act, 9 U.L.A. section 1. 42

See also N.Y. Deceased Estate Law section 89(2) and Uniform Simultaneous Death Act U.L.A. section 3

pertaining to the case of joint tenants. 43

1908, 191 N.Y. 254, 276, 83 N.E. 981, 987.

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still the position to be followed. Conway and Bertsche,44 believe that despite the

numerous amendments to the said legislation, the words by the honourable

judge in the St. John case would remain applicable.45

In essence it seems that the position in the State of New York, except for a few

technicalities, is very much the same as in the South African Law of Succession.

In the United States of America, the Uniform Simultaneous Death Act (USDA)46

has shed a rather clear light on the issue of commorientes. The original USDA

provided that, when there is insufficient evidence to establish that individuals died

otherwise than simultaneously, the property of such individuals are distributed as

if he or she survived the other(s).47 The advantages would include savings in

terms of estate duties and costs as well as the fact that the assets would then

pass to the relatives of the individual instead of the relatives of the other.

Of specific relevance to the author’s argument is section 2 of the Act,48 which

reads as follows:

Except as provided in Section 6 [and except for the purposes of the Uniform TOD Security Registration Act], if the title to property, the devolution of property, the right to elect an interest in property, or the right to exempt property, homestead or family allowance depends upon an individual’s survivorship of the death of another individual, an individual who is not established by clear and convincing evidence to have survived the other individual by 120 hours is deemed to have predeceased the other individual. This section does not apply if its application would result in a taking of intestate estate by the state.49

Author is of the opinion that the provisions contained in section 2 of the Act, is a

brilliant way of eliminating difficult questions of metaphysics and medical

technicalities, as it narrows the issues at hand down to what legal professionals

know best as “the law”. Eliminating these questions would also limit the number 44

Francis X. Conway and William I. Bertsche, The New York Simultaneous Death Law, 13 Fordham L.

Rev. 17 (1944). 45

“There was no point of time when the title of Mr. Andrews was divested at which Mrs. Andrews could

have taken it, and in construing such statute [section 17] her simultaneous death is in effect the same as a

death before his death.” 46

Promulgated in 1940 and amended in 1953 as well as in 1991. 47

Prefatory note. 48

Uniform Simultaneous Death Act 1991. 49

See also sections 3 and 4 of the Act.

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of expert witnesses required to either institute or defend matters pertaining to the

question of survivorship.

As is clear from the above, the general point of view is that the presumptions of

death, that are found in the common law, are now generally replaced by statutory

provisions.

3.4. New Zealand

The one issue on which the applicable laws in New Zealand differ from the rest,

is the issue of proof. As is discussed earlier in this chapter, the standard of proof

seems to be based on a balance of probabilities, as it is the normal standard

followed in civil matters. The Simultaneous Deaths Act,50 requires New Zealand

litigants to prove their case beyond reasonable doubt.51

4. A South African take on commorientes in relation to the positions

held in other countries

In the South African law, no presumption of death or survival applies.52 However,

our courts have entertained such a notion in a number of cases.

In Ex parte Martienssen,53 the Court delivered a judgment in which it relied on a

presumption of simultaneous death. This case concerned the death of a mother,

63, and her daughter, 27, dying in the same tragedy. In reaching its conclusion,

the Court referred to certain presumptions of simultaneous death as per the

Roman Law.54 The first presumption referred to by the Court is where a freed

man and his son die together, it is presumed in case of doubt, that the son died

first. The reason Voet gives is that thereby the freed man's estate will go to the

50

Public Act 37/1958. 51

Section 3(1) of the Act reads as follows: “In any case where, after the commencement of this Act, 2 or

more persons have died at the same time or in circumstances which give rise to reasonable doubt as to

which of them survived the others -...”. 52

De Waal and Schoeman-Malan 2008:12. See also Nepgen, N.O v Van Dyk, N.O., 1940 E.D.L., 123:130. 53

1944 CPD 139. 54

See in gereal Johannes Voet, His Commentary on the Pandects, Juta 1880.

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patron. The Court stated that it is obvious that in modern law, such a

presumption had no application. The second presumption the Court referred to is

that where a father or mother and son die together in one catastrophe, the son

will be presumed to have died first if he is under the age of puberty on the ground

that he was less able to put up a struggle and was indeed weaker than his

parents in strength of body and determination. If the son is over the age of

puberty, he is presumed to have died after the parent on the ground that then

death would have overtaken each according to the usual course of mortality.

In Ex parte Bagshaw,55 the court also declared the commorientes to have died

simultaneously. This case concerned two people dying as a result of the ship on

which they travelled being hit by a torpedo missile.

In Ex parte Chodos,56 the Court presumed the death of a mother and her

daughter as being simultaneously after being shot by Germans in Poland in

1942. The Court referred to no specific presumptions and nor does it appear from

the report that any judgment was given.

In the case of Greyling NO v Greyling No en andere,57 the Court, however,

confirmed that no presumptions of simultaneous death or survivorship on the part

of one of the commorientes exist. The court confirmed the position taken by

Lansdown RP in Nepgen NO v Van Dyk,58 where he stated:“We have no such

presumption here, and no presumption in the matter of survivorship which may

be gathered from old authorities is applicable to this case.”59

It is clear that in the South African law no presumptions exist. The issue of

commorientes is normally dealt with by means of a clause in the last will and

55

1942 2 P.H. F.77 56

1948 4 SA 221 C. 57

1978 2 SA 114 T. 58

1940 EDL 123. 59

See p.130 where the Honourable Judge referred to the presumption contained in section 184 of the Law

of Property Act 1925 of England.

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testament of a testator or testatrix.60 In the absence of such a will or provision,

The Master High Court launches an investigation upon which he then makes a

decision on whether or not the parties died simultaneously. In the event that he

finds the parties to have died simultaneously, the respective deceased estates

will be dealt with in accordance with the Intestate Succession Act.61

The burden of proof is, as in all legal systems referred to above, on the

plaintiff/applicant and the standard of proof remains based on a balance of

probabilities as is customary in civil matters.

The main problem with the current position of the South African law, is that our

courts rely, often solely, on the testimony of experts to come to a conclusion as

to which of the deceased persons survived the other. The use of experts in

testimony is a very expensive procedure and will only become relevant once a

matter has been set down for trial. The whole procedure is time consuming,

expensive and, in essence, squandering our courts’ time. On this issue, Van der

Walt J, indirectly confirmed the complex nature of defining death (and time of

death) by means of expert witnesses.62 The testimony of two neurologists that

could have been used by the Respondents is, with all due respect, based on

speculation. As will be shown in the chapters on the definitions of both death and

time, using a neurologist to determine time of death in terms satisfactory for the

judiciary is unsatisfactory. On page 121 of the report, Van der Walt R refers to

the English case of In re Pringle: In re Baker v Matheson.63 It is clear from the

passage quoted by his Honourable Judge Van der Walt, that Judge Cohen

believed the testatrix wished to attach the ordinary meaning to “simultaneous”

and that making use of metaphysicists would be redundant.

60

For example: If my spouse and I shall die under such circumstances that the order of our deaths cannot be

readily ascertained, my spouse shall be deemed to have predeceased me. No person, other than my spouse,

shall be deemed to have survived me if such person dies within 30 days after my death. This article

modifies all provisions of this will accordingly. 61

81/1987. 62

Greyling NO v Greyling NO en andere 1978 2 SA 114 T. 63

1946 Ch 124.

17

In order to better understand the underlying concepts of simultaneous death,

being death and time, the following chapters will indicate exactly why certain

legal systems prefer presumptions of death above factual findings.

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CHAPTER 3 : MEDICINE AND DEATH

In this chapter various forms of death, the problem with the diagnosing of death

for the law will be compared and discussed and, lastly, the difficulties in factually

determining death will be explained. Before assessing the conclusion, one has to

look at the beginning... life.

1. Life

Due to the vast number of living organisms and creatures, author will limit the

definition to the elements and criterion applicable to human life.

Life, or biota, is a characteristic that distinguishes objects that have signalling

and self-sustaining processes from those that do not, either because such

functions have ceased (death), or else because they lack such functions and are

classified as inanimate.64

The Shorter Oxford English Dictionary,65 defines ‘life’ as follows: “1 [mass noun]

the condition that distinguishes animals and plants from inorganic matter,

including the capacity for growth, reproduction, functional activity, and continual

change preceding death...”

When narrowing the definition down to what makes human beings continue its

existence, time has to be spent on the seven vital functions that are essential to

human life:

1.) Movement – The ability of humans to move and adapt to their

surroundings.66

2.) Sensation – The ability of humans to react and protect themselves through

stimuli experienced by means of its six senses. This is achieved through

64

Koshland and Daniel 2002:2215-2216. 65

2007. Oxford:Oxford University Press, Sixth Edition, 2007. 66

Bhagavan 2002:499.

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the transduction of a neuro-impulse to the brain for integration and the

necessary reaction by the human body to such stimuli.67

3.) Breathing – All of mankind has to inhale oxygen and exhale carbon

dioxide in order to breathe and live.68

4.) Respiration – The process by which oxygen and other gasses are

transferred via blood cells to the rest of the body and organs to enable

bodily functions and processes. Oxygen, in turn, is the product of a system

whereby gasses are exchanged in the alveolar region of the lungs.69

5.) Excretion – The process by which waste products of metabolism and other

non-useful materials are eliminated from the human body. This is primarily

carried out by the lungs, kidneys and skin.70

6.) Nutrition – The ability of the human body to extract essential vitamins and

minerals to regulate body temperature, metabolic activities and energy to

sustain other processes of the human body.71

7.) Reproduction – The process by which two humans, male and female,

interact through sexual intercourse to reproduce and thereby ensuring the

continuance of the human race and species.72

It is clear from the above that the human body is a complex mechanism

consisting of various systems and processes. This, however, is rather elementary

in comparison to the quandary of defining death.

67

Silverthorn et al 2004. 68

Raven et al. 2007. 69

Haton et al. 2010:108-118. 70

Beckett et al. 1987:110. 71

Ebenhöh and Heinrich 2001:21-55. 72

Piñón 2002:15.

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2. Death

Defining death

The Shorter Oxford English Dictionary,73 defines death as: “the action or fact of

dying or being killed; the end of the life of a person or organism...”

Black’s Law Dictionary,74 defines death as: “The extinction of life; the departure

of the soul from the body; defined by physicians as a total stoppage of the

circulation of the blood, and a cessation of the animal and vital functions

consequent thereon, such as respiration, pulsation, etc..”

As simple as the above may seem, death is in itself a very complicated subject

with many views as to determining, diagnosing and dealing with it. In order to

ensure effective research on the topic, author will limit the discussion to the fact

of death in accordance with science and medicine.

Death can occur in many ways and according to the California District Court of

Appeal in Thomas v Anderson,75 “Death is not a continuous event and is an

event that takes place at a precise time.” This raises the question as to what

types or forms of death exist and which of those are relevant to the law.

2.1. Medical definitions of the types of death

As discussed above, death and the various types thereof may, or may not, be

relevant for purposes of using it in law. The most relevant types as found in

medicine and science would be the following:

Necrobiosis – Is defined as: “the natural death of cells or tissues through aging,

as distinguished from necrosis or pathological death.”76 This

definition and process of death, simply means that individual cells

73

Oxford University Press 2007. 74

West Group 2007. 75

1950 215 P 2d 478.

76 Houghton Mifflin Company 2000.

21

die all the time. Other than the nerve cells in the human body, all

other cells are continuously replaced with new ones. The dying of

these cells, however, does not constitute death for the purposes of

legal reference or certainty over the question of death.

Necrosis – The definition of necrosis is: “the death of one or more cells in the

body, usually within a localized area, as from an interruption of the

blood supply to that part.”77 This has to be distinguished from

necrobiosis in that it is the death of many cells in a localized area and

is mostly due to inadequate blood supply (as in infarcted tissue),

bacterial infection, traumatic injury, and hyperthermia. Necrosis is

therefore also not sufficient to constitute death for purposes of legal

certainty.

Clinical death – “is the medical term for cessation of blood circulation and

breathing, the two necessary criteria to sustain life.”78 Before the

1960s, human death was primarily understood and diagnosed

based on this definition. The irreversible cessation of breathing

and heartbeat as well as that of the functioning of the heart and

lungs, constituted the death of a person as a whole. It is obvious

that this type of death is in line with what would be required by

law to define death. An in-depth discussion on this type of death

will follow later in this chapter.

Brain death – The American Heritage Dictionary of the English Language,79

defines ‘brain death’ as: “Irreversible brain damage and loss of

brain function, as evidenced by cessation of breathing and other

vital reflexes, unresponsiveness to stimuli, absence of muscle

activity, and a flat electroencephalogram for a specific length of

time.” A more detailed discussion of this concept follows later in this

chapter.

Somatic death – Has been defined as: “Death of the entire body.”80 In humans it

is usually after brain death, as the other vital organs are unable

77 HarperCollins 2003. 78

Lind B et al. 1975:19-31. 79

Houghton Mifflin Company 2000.

80 Ibid.

22

to function without the brain. With modern technology, though,

one can be brain dead but still have circulation and respiration

artificially. In such a case one isn't somatically dead because

other organs are still alive. Once artificial support is removed

somatic death occurs, because the person is then entirely and

completely inactive with regard to brain, circulation, and

respiration. It seems unlikely that this type of death would in any

event cause problems for jurisprudence.

2.1.1. Clinical death

As stated above, clinical death is the type of death that results due the seizure of

cardiac and respiratory activity in the human body. Clinical death is often

misconstrued as somatic death and vice versa. The difference in the two lies in

the artificial continuance of the said respiratory and cardiac activities.81

Black’s Law Dictionary,82 defines death as “The cessation of life; the ceasing to

exist; defined by physicians as a total stoppage of the circulation of the blood,

and a cessation of the animal and vital functions consequent thereupon, such as

respiration, pulsation etc.” This confirms the combination of clinical and somatic

death. Black’s definition was followed in at least two cases considered by

American Supreme Courts.83

Firstly, Thomas v Anderson,84 where a California District Court of Appeals in

1950, in ruling on the issue as to which of two persons died first, said, “In the

instant case the question as to which of the two men died first was a question of

fact for the determination of the trial court. Death occurs precisely when life

ceases and does not occur until the heart stops beating and respiration ends.

Death is not a continuous event and is an event that takes place at a precise

time.”

81 Clinical death is also the term most readily used by medical practitioners and will, for the rest of this

discussion, be referred to as ‘clinical death’ when in fact it is a combination of the two terms.

82 West Group 2011.

83 Spitz and Fisher 1973:11-12.

84 215 P 2d 478.

23

Another pertinent case, Smith v Smith,85 was decided by the Supreme Court of

Arkansas. Although similar to Thomas v Anderson, the Court more specifically

referred to somatic death and confirmed the death of the whole body rather than

just the absence of respiration and circulation. This case involved a husband and

wife fatally injured in a motor vehicle accident. The husband was declared dead

at the scene, but the wife was taken to hospital in a state of unconsciousness.

She never regained consciousness and subsequently died seventeen days later.

The petitioner argued that both parties died simultaneously since there was no

evidence of brain activity after the accident and efforts by physicians to

resuscitate her were unsuccessful. The inference was that the resuscitative

efforts were maintaining the body in a state of animation, although it could not be

shown that life existed. The court dismissed the petition as a matter of law,

stating that the contention according to which the wife lost her power to will at the

same instant as the husband and that her demise occurred at the same time

since she never regained consciousness, was unacceptable. “Likewise we take

judicial notice that one breathing, though unconscious, is not dead.” Life was

therefore considered to be fixed in the person’s ability to breathe and is uniform

to the definition of somatic death.

In the South African case of S v Williams,86 the Honourable Judge Vivier followed

“the traditional view of the community”.87 This view is ultimately found in the

definition by Black and had the Appeal Court found death to occur when

breathing and heartbeat are no longer present.

Heart transplantation, however, brought medical, ethical and legal questions into

focus, most specifically with respect to the determination of death. The ability of

modern medicine to maintain respiratory and cardiac function long after seizure

of brain activity, spontaneous breathing and movement, has added to the

difficulty of defining death. The contention that death has occurred when all

cerebral function has, and is, irreversibly stopped has led to the definition of 85

217 SW 2d 275. 86

1986 4 SA 1188 A. 87

Headnote.

24

cerebral death. The criteria for cerebral death are: (a) bilateral dilation and

fixation of the pupils; (b) the absence of all reflexes; (c) cessation of respiration

without mechanical assistance; (d) cessation of spontaneous cardiac action (e) a

completely flat brain wave tracing.88 The expansion of defining and diagnosing

cerebral death would soon give rise to the concept and definition of brain death.

2.1.2. Brain death

The concept of brain death is not a new issue and has been discussed and

written about extensively by the world of medicine.

As stated above, the first heart transplant changed the way in which medicine,

the law and philosophers looked at death. Up until 1967, when Dr Christiaan

Barnard carried out the first heart transplant, death was primarily defined and

diagnosed based on the absence of respiration and circulation. One of the main

issues that arose as a result of the heart transplant was the fact that there were

no clear guidelines or rules for the diagnosis of death of beating heart donors.89

In September 1968 an ad hoc committee from Harvard Medical School published

a report on the “hopelessly unconscious patient.” In this report, the committee

agreed that artificial life support could be withdrawn from patients diagnosed with

brain death and that their organs could be removed for the purposes of

transplantation. The removal was obviously subject to the consent of the next of

kin of the patient. The report, however, failed to give a definite definition of the

concept ‘death’, but more specifically ‘brain death’.

To correct and further investigate the issues surrounding brain death, the US

President’s Commission was appointed in 1981. The President’s Commission

published their report in July 1981.90 In the report, they made a number of

conclusions and submissions. Amongst these conclusions, they stated that

88

Spitz and Fisher 1973:420-444. 89

Hoffenberg 2001:1478-1480 90

U.S. Government Printing Office Washington, D.C. 20402. A Report on the Medical, Legal and Ethical

Issues in the Determination of Death.

25

“death is a unitary phenomenon which can be accurately demonstrated either on

the traditional grounds of irreversible cessation of heart and lung functions or on

the basis of irreversible loss of all functions of the entire brain.”91 Interestingly

enough, throughout the report the phrase “death has occurred” was used instead

of “moment of death” or “defining death at that moment in time”. The “legal”

problem with the medical definitions of death is clarified somewhat. For purposes

of medicine, as will later be seen in this chapter, the diagnosing of death is the

important concept and not determining the moment of death per se. The law, on

the other hand, would more likely need to be addressed on the moment of death,

rather than the diagnostics thereof.

Most European countries, the United States and South Africa conform to the

definition of brain death as being the “total and irreversible loss of all brain

function.”92 This approach to diagnosing brain death is referred to as ‘the whole

brain concept.’ The United Kingdom follows the approach that involuntary and

irreversible damage to the brainstem would not necessarily constitute cessation

of all neurological activity, but would nevertheless result in death.93 In the latest

report by The Academy of Medical Royal Colleges and their Faculties in the

United Kingdom, the authors defend the UK’s position on brain-stem death when

it states

in short, while there are some ways in which parts of the body may continue to show signs of biological activity after a diagnosis of irreversible cessation of brain-stem function, these have no moral relevance to the declaration of death for the purpose of the immediate withdrawal of all forms of supportive therapy. It is for this reason that patients with such activity can no longer benefit from supportive treatment and legal certification of their death is appropriate.”94

It is clear from the above that a single definition or type of death raises many of

its own issues and difficulties. The diagnosis of brain death or brainstem death is

in itself a very complicated process.95 In an article published by The American

91

Page 1 of the report. 92

Waters et al. 2004:760-764. 93

Conference of Medical Royal Colleges and their Faculties in the United Kingdom 1976:1187-1188. 94

Academy of Medical Royal Colleges and their Faculties in the United Kingdom 2004: 11. 95

See UK Department of Health A code of practice for the diagnosis of brainstem death 1998. The criteria

for brain death are as follows: 1.) All brainstem reflexes are absent. 2.) The pupils are fixed in diameter and

do not respond to sharp changes in the intensity of incident light. 3.) There is no corneal reflex. 4.) The

vestibular-occular reflexes are absent. 5.) No motor responses within the cranial nerve distribution can be

elicted by adequate stimulation of any somatic area. 6.) There is no gag reflex or reflex response to

26

Academy of Neurology,96 the authors state that “brain death determinations have

been challenged in courts, but no systematic study has been published in

medical literature. Court cases on brain death determination could provide some

insights for the clinical practice of physicians.”97 In the article a number of cases

are listed which highlight two of the most important issues regarding the

diagnosis of brain death and the subsequent termination of artificial life support

being: a.) The importance of documentation involving timing of death;98 b.) family

interference or involvement with brain death diagnosis.99

2.2. Statutory definitions of death and related matters

In South Africa the National Health Act100 defines death simply as “brain death.” It

is safe to say that brain death would be ‘the whole brain concept’ as explained

above.

In the Births and Deaths Registration Act,101 applicable to the United Kingdom,

death is not defined. Section 22 of the Act places the duty of diagnosing and

recording the cause of death solely in the hands of the medical practitioner.

In 1998 the UK Department of Health published A code of practice for the

diagnosis of brainstem death in which it submitted that there is no statutory

definition of death, but “...it is recommended that the definition of death should be

regarded as ‘irreversible loss of the capacity for consciousness, combined with

irreversible loss of the capacity to breathe’. The irreversible cessation of brain

stem function (brain stem death) whether induced by intra-cranial events or the

bronchial stimulation by a suction catheter passed down the trachea. 7.) No respiratory movements occur

when the patient is disconnected from the mechanical ventilator for long enough to ensure that the arterial

carbon dioxide tension rises above the threshold for stimulation of respiration. 8.) A flat EEG for at least 6

hours. 96

Burkle et al. 2011:837-841. 97

Own emphasis. 98

See for example Cavagnaro v Hanover Insurance Co. 1989 565 A2d 728, 730–31; Mineroff v Silber

2000 274 A.D.2d 379; Estate of Sewart 1995 274 Ill. App. 3d 298, 652 N.E.2d 1151. 99

Gallups v. Cotter 1988 534 So.2d 585; Jacobsen v. Marin General Hospital 1999 192 F.3d 881; United

States v. Long Island Jewish Medical Center 1997 No. 97-3412. 100

Act 63/2003. 101

1953 c. 20.

27

result of extra-cranial phenomena, such as hypoxia, will produce this clinical

state and therefore brain stem death equates with the death of the individual.”102

In the United States of America the Uniform Simultaneous Death Act,103 section 5

refers to the evidence of death or status. Section 5(1) of the Act reads as follows:

“Death occurs when an individual is determined to be dead under the Uniform

Determination of Death Act.”104

Both life and death seem to be approached with an exceptional degree of caution

by physicians and courts alike. It is clear that the time of death is not necessarily

defined or determined with reference to existing definitions of either “time” or

“death”. As will be seen in the following chapter, time is most probably the

biggest obstacle in the quest to gain legal certainty.

102

On page 3 of the report. 103

1991. 104

Section 1 of The Uniform Determination of Death Act reads: “An individual who has sustained either

(1) irreversible cessation of circulatory and respiratory functions or (2) irreversible cessation of all

functions of the entire brain, including the brain stem. A determination of death must be made in

accordance with accepted medical standards.”

28

CHAPTER 4 : TIME

1. General

Time is what drives modern societies. In law, time is especially important when it

refers to given periods in which parties in any matter must draft, serve and file

certain documents.105 Time seems not to be an issue in law when it is portrayed

in the required number of days, weeks, months or years. The difficulty with time

is, however, found in those factors of time that are not measured by the common

watch.

The importance of the concept is also the main problem with the concept. When

using time in relation to the issues of commorientes and the various types of

death (with special reference to brain death), it is of the utmost importance to

define, understand and specify time according to what is required in any given

matter. As is shown in the chapter on commorientes, South African laws require

proof of simultaneous death or a factual finding on whether or not one party has

survived the other.106

When considering the tendency of both the judiciary and the legislative to

encourage the use of “plain language”107, it is safe to say that “fact” could be

defined as “a thing that is known.”108 Keeping this in mind, the definitions and

order of death must, in plain language, be certain to the extent that it is

considered to be without any possibilities to the contrary. With reference to the

above, time could prove to be more than just what is measured by a clock.109

105

See for example Jones & Buckle, The Civil Practice of the Magistrates’ Courts in South Africa, Vol. II

Rule 5(1)(b). This rule requires a person who serves and files a notice of intention to defend to serve and

file a plea, or an exception, or an application to strike out within 20 days after giving the said notice of

intention to defend. See also Prescription Act 68 of 1969 in which a general term of 3 years is stipulated for

a person to institute civil proceedings. 106

Roeleveld 1970:31 107

See for example section 22 of The Consumer Protection Act 68/2008. See also Greyling NO v Greyling

NO 1978 2 SA 122-124. 108

Oxford University Press 2007. 109

Ivey and Hume 1974:65 "Our operational definition of time is that time is what clocks measure.".

29

2. The legal and religious philosophy of time

For centuries philosophers in both the fields of law and religion considered the

existence, scope and definition of time.

2.1. Saint Augustine

Saint Augustine, a bishop of Hippo Regius, gave extensive thought to the

concept of time.110 In Book Eleven of Confessions, he attempts to define and

explain time. The biggest hurdle he faced was defining time against the

background of the Christian belief that time was not in existence before God

created the universe.111 Both the past and present could not factually be

described as time in that both these periods are not in existence. The past is thus

no longer in existence and the future is not yet in existence.112 St. Augustine

regards time as a three part action by the human mind: Expectatio, contuitus and

memoria.113 Ultimately St. Augustine conceded that human thought and

reasoning will never be wide enough to explain a concept such as time. He

proclaimed that all is done through God and that it is not up to human beings to

define Godly terms and principles. In answering his own question as to what

time ultimately is, he simply states: “If no one asks me, I know; if I want to explain

it to a questioner, I do not know.”114

Although Augustine recognised the possibility of a mathematical definition of

time, he refrained from even mentioning a possible formula.115

110

St. Augustine 2006:231-242. 111

St. Augustine 2006:240. 112

St. Augustine 2006:242. – “But the two times, past and future, how can they be, since the past is no

more and the future is not yet?”. 113

St. Augustine 2006:254. 114

St. Augustine 2006:242. 115

St. Augustine 2006:250: "No corporeal object moves except within time... When a body moves, I

measure in terms of time how long it is in motion, from the moment when it begins until its motion ceases. If

I did not notice when it began, and it continues to move without my seeing when it stops, I cannot measure

the time, except perhaps the interval between the moment when I began to watch and that when I cease to

observe it...If the motion of an object is one thing, and the standard by which we measure its duration

another, is it not obvious which of the two has the stronger claim to be called time?"

30

2.2. Summary of Religious views on time

Muslim philosophers such as al-Farabi and Avicenna believed that, although time

should be considered to have its origin in God’s creation of earth, they held that

the act of creation is atemporal and purely logical. Since antiquity two images of

time have been discussed: the line made up of stationary points and the flow of a

river. Philosophically speaking, these images correspond to two positions: "being

as timeless" and "being as temporal." The two positions can be found in early

Indian thought, for instance, as held in Brahmanism and Buddhism, respectively.

The different schools in the Brahmanical tradition have maintained that the

ultimate being is timeless (i.e. uncaused, indestructible, beginningless, and

endless). Buddhists, on the other hand, have claimed that being is instantaneous

and that duration is a fiction since, according to their view, a thing cannot remain

identical at two different instants.116

In Judaism (and Christianity), however, most philosophers have rejected this

view maintaining that God's creation of the world was in fact its temporal

beginning. In Judaic thought some have argued that time existed and the Torah

was created before the creation of the world. This view of time would allow the

notion of the universe being created in time. However, according to the most

common view in traditional medieval philosophy, time is considered to be

relational; i.e. , there can only be time in relation to a world of events. With this

view of time, creatio ex nihilo means that the universe does not owe its existence

to anything in the physical world and can only be explained by reference to

something that is not a part of this temporal world.

The Hindu religion has been more accepting of the idea of time as a form of

science. It considers human life to consist of various cycles that are, in turn, also

comprised of various sub-cycles. From a Paramāṇu, approximately 16.8

microseconds, to the lifespan of Braham (God) of 309,173,760,000,000 years.117

116

See in general Balslev, Anindita Niyogi. A Study of Time in Indian Philosophy. Wiesbaden, Germany:

Harrassowitz, 1983. 117

Burgess 1860:486.

31

2.3. Immanuel Kant

Immanuel Kant (1724 – 1804), a German philosopher aimed to define time as a

concept independent of human experience as a presupposition of its existence

and origin.118 In his book, Critique of Pure Reason (German: Kritik der reinen

Bernunft),119 Kant begins his discussion of time in the Transcendental Aesthetic

with a series of five arguments about the basic nature of time. They aim to

establish the human representation of time as an a priori form of sensibility and

thereby exclude the competing empirical and conceptual theories of time. For the

purposes of this work, only the first three arguments will be discussed.

The first of his arguments reads as follows:

Time is not an empirical concept that is somehow drawn from experience. For

simultaneity or succession would not themselves come into perception if the

representation of time did not ground them a priori. Only under its presuppositions can

one represent that several things exist at one and the same time (simultaneously) or in

different times (successively)120

This argument seems rather implausible when it is read literally as it would imply

that no concept can be formed on the basis of experience. As Gardner points

out, however, the said argument should not be read literally.121 He suggests

reading the argument by first establishing the role space has to play in it. He

states that if space was not represented as a priori it would be an empirical

concept and in order for a concept to be formed empirically, it would have to be

obtained from experience of external objects.122

Despite Gardner’s efforts to clarify Kant’s argument, it still has a number of flaws.

In particular, it offers us no compelling reason to suppose that a representation of

118

See in general Norman Kemp Smith A Commentary to Kant's Critique of Pure Reason, Palgrave

Macmillan, 2003. 119

Immanuel Kant, Kritik der reinen Bernunft, 1781. 120

A30/B46. 121

Gardner 1999:74. 122

Gardner 1999:75.

32

time (as opposed to the fact of time) is a necessary precondition of the

experience of the passage of time. On the common sense view of time as

pervasive in the world in itself, both the object and the subject are in time.

Consequently, the perceptions of the subject are naturally distributed in time and

they do not need to be allocated into simultaneous or successive time slots by

any a priori formal structure of the mind. Our basic ideas about time, e.g. that it is

linear and unidirectional, would eventually be made explicit by a process of

abstraction from the features of time pervasive in our experience. In essence, the

fact of time is necessary for the experience of simultaneous and successive

moments, but not any representation of time.

Kant’s second argument seems only to qualify the first:

Time is a necessary representation that grounds all intuitions. In regard to

appearances in general one cannot remove time, though one can very

well take the appearances away from time. Time is therefore given a

priori. In it alone is all actuality of appearances possible. The latter could

all disappear, but time itself, as the universal condition of their possibility,

cannot be removed.123

Gardner states that this argument attempts to rule out the possibility that the

representation of time and inner sense are mutually necessary to define time.124

It is submitted that making the “simultaneous” presence of both representation

and inner sense a requirement of time, it would constitute arguing that time is an

empirical concept. Both Kant and Gardner therefore argue that representation of

time is necessary for appearances, but not vise versa. The representation of time

would then have a form of priority or preference over appearances.125

Kant’s third argument is self-explanatory as it is a presumption of the definition of

a priori:

The a priori necessity also grounds the possibility of apodictic principles 123

A31/B46. 124

Gardner 1999:76. 125

Ibid.

33

of the relations of time, or axioms of time in general. It has only one

dimension: different times are not simultaneous, but successive…

These principles could not be drawn from experience, for this would yield

neither strict universality nor apodictic certainly. We would only be able to

say: This is what common perception teaches, but not: This is how

matters must stand. These principles are valid as rules under which

experiences are possible at all, and instruct us prior to them, not through

it.126

It is clear from the above that the concept of time has baffled many a philosopher

and religious thinker. What seems to be common in all of the theories is the idea

that time consists of- and presupposes a subjective element. As will be seen in

the following part of this chapter, the science and fact of time may just, however,

overrule this subjective element.

3. Time: The Science of Fact

As expounded in the first part of this chapter, time is more complex than we

could care to imagine.

In 1905, Albert Einstein, a German theoretical physicist, published his theory now

commonly known as the Special Relativity Theory (SRT).127 This theory,

published when he was only 26 years old, changed the way conservative

physicists looked at time, speed and light.

A predecessor of the SRT is Galileo Galilei’s invariance theory entitled Dialogue

Concerning the Two Chief World Systems. In terms of the Galilean Invariance

theory speed, time and distance are all relative and that all observers see motion

in the same form and light.128 Galileo faced much resistance and opposition from

authorities when he claimed that the earth moves in relation to both the moon

and the sun. Galileo was subsequently charged, prosecuted and convicted of his

126

A31/B47. 127

Einstein 1905:891. 128

Maurice A. Finocchiaro: Retrying Galileo, 1633-1992, University of California Press, 2007, p. 20-22.

34

“bizarre” claim that the earth, sun and moon rotate.129 The greatest opposing

argument he faced was that if the earth rotated at a certain speed (whether fixed

or variable), objects should fall in different directions if thrown or dropped.

Galileo, however, explained his theory by means of the following example:130

Motion is relative to the vessel or platform from which it is observed. If one was to

lock yourself, a friend, a few small flying animals, a bowl with fish in it and a ball

in a ship that is stationary, movement of all of the above objects will occur in a

certain way at a certain speed and over a specific time. If, however, the ship was

to move at a constant speed and the movement of the ship is in no way affected

or varied by means of inconsistencies (eg. waves, winds and speed), movement

of the objects will not be affected in any way. The animals will still fly at the same

speed and with the same ease as it had when the ship was stationary. If you and

your friend were to jump, your movements and time spent in the air will

correspond with that of a stationary ship. It is clear that, according to Galilei, one

can distinguish between a system moving uniformly from one at rest. Hence, any

two systems moving without acceleration are equivalent, and unaccelerated

motion is relative.

Einstein’s SRT, on the other hand, contradicts Galilei in that relativity is now

defined by means of time passed and the observation thereof by different

observers at different platforms. Einstein held that the only constant is the speed

of light and that all subsequent motion and time passed, will differ from one

platform to another. Einstein’s SRT can be explained by means of an example:

Two people riding on a train from Bloemfontein to Kimberley play a game of table

tennis in the sport compartment of the train. Lets say, the train moves at 100 km

per hour (= 27.8 m/s) and the two players hit the ball at a speed of two meters

per second. In the reference frame of the players, the ball moves back and forth

at this particular speed. For a stationary observer standing beside the railroad,

however, things look quite different. In his reference frame the ball moves at 29.8

m/s when it is played forward in the direction where the train is heading, while it

moves at 25.8 m/s in the same direction when it is played backwards. Thus he

129

Finocchiaro 2007:7-25. 130

Drake 1953:186-187.

35

doesn't see the ball moving backward at all, but always moving towards

Kimberley. For an observer in outer space, matters again appear to be totally

different because of the Earth's rotation, which is opposite to the train's

movement; therefore the outer space observer always sees the ball moving East.

The significance of this theory is that it puts an end to the concept of “absolute

time”. There is thus not one world clock that measures time for the whole of the

planet. According to Einstein’s Relativity Theory time is dependant on the

reference frame applicable to the observer and that the speed of light is constant

in free space.131 It is submitted that due to the complex and precise nature of

Einstein’s SRT, which is also the foundation of modern definitions of second and

metre, events will even be observed at different instances in time by the left and

the right eyes of the same person.

3.1. Time in Physics and Biology and the measurement thereof

In general physics, time is defined by its measurement.132 Although it may

appear simple, the measurement and instruments used are often considered the

most difficult and yet important part of measuring time.133

The mechanical clock, as first designed and constructed by Richard of

Wallingford in 1330, was initially used as an astronomical orrery.134 In 21st

century physics, however, an anatomic clock is used as the most accurate time

and frequency measurement instrument.135

In biology, the lifespan of living organisms is measured from nanosecond

accuracy to millions of years.136 The measurement of such lifespan is also

conducted by means of modern measurement instruments. With reference to the

chapter on Death, cellular death, for example, will be measured by means of an

anatomic clock whereas brain death will be measured by the standard wrist

131

Einstein et al. 2000:37-65. 132

Considine DM and Considine GD 1985:18-61. 133

Ibid 134

Watson 1979:372-384. 135

McCarthy and Seidelman 2009:181-182. 136

Buonomano 2007:3.

36

watch of the medical practitioner as the time of death is determined not with

reference to the moment death occurs, but rather at the time it is diagnosed.

Time, according to The International System of Units (SI),137 is defined and

measured with reference to “second”. According to the report,138 a second was

initially defined as “the fraction 1/86 400 of the mean solar day.” The exact

definition of “mean solar day” was left to the astronomers. However,

measurements showed that irregularities in the rotation of the Earth made this an

unsatisfactory definition. By making use of an anatomic clock, a second can be

measured and defined as follows: “The second is the duration of 9 192 631 770

periods of the radiation corresponding to the transition between the two

hyperfine levels of the ground state of the cesium 133 atom.”139

Even a second proves to be more than meets the eye. A second can be

subdivided into periods so small that no scientist or instrument can measure its

speed.140 The following table serves to explain just how difficult it is to determine

and define a specific point in time:141

Orders of magnitude (Time)

Factor

(s) Multiple Symbol Definition

Comparative examples &

common units

Orders of

magnitude

10−44

5.4×10-20

ys = 5.4×10-44

s:

One Planck time tP =

≈ 5.4×10-44

s,

the time required for light

to travel one Planck length,

is the briefest physically

meaningful span of time. It

10−20

ys,

10−19

ys

(10−44 s,

10−43 s)

137

Taylor and Thompson 2006. 138

Taylor and Thomson 2006:19 139

Ibid. 140

Koke et al. 2010:462-465. 141

http://physics.nist.gov/cgi-bin/cuu/Value?plkt, accessed 21/10/12.

37

is the unit of time in the

natural units system known

as Planck units.

10−24

1

yoctosecond ys[2]

Yoctosecond,

(yocto- +

second), is one

septillionth

(short scale) of a

second.

0.3 ys: mean life of the W

and Z bosons.

0.5 ys: time for top quark

decay, according to the

Standard Model.

1 ys: time taken for a quark

to emit a gluon.

23 ys: half-life of 7H.

1 ys and

less, 10 ys,

100 ys

10−21

1

zeptosecond zs

Zeptosecond,

(zepto- +

second), is one

sextillionth

(short scale)of

one second.

7 zs: half-life of helium-9's

outer neutron in the second

nuclear halo.

17 zs: approximate period

of electromagnetic

radiation at the boundary

between gamma rays and

X-rays.

300 zs: approximate

typical cycle time of X-

rays, on the boundary

between hard and soft X-

rays.

500 zs: current resolution

of tools used to measure

speed of chemical bonding

1 zs, 10 zs,

100 zs

10−18

1 attosecond as One quintillionth

of one second

12 attoseconds: shortest

measured period of time.

1 as, 10 as,

100 as

10−15

1

femtosecond fs

One

quadrillionth of

one second

cycle time for 390

nanometre light, transition

from visible light to

1 fs, 10 fs,

100 fs

38

ultraviolet

10−12

1

picosecond ps

One trillionth of

one second

1 ps: half-life of a bottom

quark

4 ps: Time to execute one

machine cycle by an IBM

Silicon-Germanium

transistor

1 ps, 10 ps,

100 ps

10−9

1

nanosecond ns

One billionth of

one second

1 ns: Time to execute one

machine cycle by a 1 GHz

microprocessor

1 ns: Light travels

12 inches (30 cm)

1 ns, 10 ns,

100 ns

10−6

1

microsecond µs

One millionth of

one second

sometimes also abbreviated

µsec

1 µs: Time to execute one

machine cycle by an Intel

80186 microprocessor

4–16 µs: Time to execute

one machine cycle by a

1960s minicomputer

1 µs, 10 µs,

100 µs

10−3

1

millisecond ms

One thousandth

of one second

4–8 ms: typical seek time

for a computer hard disk

100–400 ms (=0.1–0.4 s):

Blink of an eye[7]

18–300 ms (=0.02–0.3 s):

Human reflex response to

visual stimuli

1 ms, 10

ms, 100 ms

100 1 second s

1 s: 9,192,631,770 periods

of the radiation

corresponding to the

transition between the two

1 s, 10 s,

100 s

39

hyperfine levels of the

ground state of the cesium-

133 atom.

60 s: 1 minute

40

CHAPTER 5 : CONCLUSION

It is clear from the above discussions on commorientes, death and time that the

Law of Succession is left wanting when dealing with such an elaborate and

specialized part of science, law, medicine and society.

The main purpose of this paper was to bring to the attention of the reader, the

wide and uncertain principles surrounding the classification and diagnosing of

simultaneous death. Death, as defined in chapter two of this paper, is not as

elementary as was initially considered. Taking into consideration the various

tests and procedures to be followed in order to diagnose death, time becomes a

problem.

If the South African Law of Succession requires the question of who survived or

predeceased who to be answered with reference to fact, it cannot simply accept

that one died before the other on a balance of probabilities. It has to be proven

beyond reasonable doubt, as is the position in New Zealand. Even the idea of

considering fact as being that which can be proven beyond reasonable doubt is

left wanting. Fact is that which is certain. The certainty required would involve not

only finding that one died before the other, but also at exactly what time death

occurred. This leaves the law with another question: What is time?

Time, as shown in chapter three above, carries different meanings and

definitions for various different sciences and philosophies. A possible argument

against this paper would be that modern technology and science as well as the

rate at which these fields are developing, renders the case law and arguments

baseless. However, when it comes to time, in the early 20th Century Albert

Einstein published theories on time and its relevance to speed, light and the

human experience thereof. Despite numerous institutions such as the European

Organization for Nuclear Research (CERN) trying to prove that there are

particles that move faster than the speed of light, they have not yet managed to

disprove Einstein’s theories pertaining to space, speed and time.

41

Death has various meanings and definitions and one could argue that modern

technology will change the way we look at it in the near future. We have,

however, used the same definitions of death for a number of years, the only

changes coming in the procedures and diagnostic tests. Death is so widely and

yet comprehensively defined that it is safe to say that the only developments will

come in the form of diagnostics and not material definitions. The medical

profession has also indicated that the courts must provide it with guidance and

clarification on the questions of death and the moment of death. The medical

profession is concerned with establishing that death present, not determining the

precise time thereof.

Keeping in mind that death is a process and that time is yet to be fully

comprehended in the 21st Century, events to occur simultaneously is highly

unlikely. Therefore, the use of experts in these fields seem to be an exercise in

futility. Even if it is stated that the use of experts merely assists the courts in

coming to a conclusion, the cost at which this is achieved is immense.

In South African Supreme Courts, matters set down for trial often only serves

before a judge years after an application for a trial date has been made. While

the issue of time pertaining to enrolment of these matters in itself is one of great

concern, the costs involved seem to defeat the purpose. Due to the fact that

these matters are so complex, the use of senior counsel and expensive experts

is a common occurrence. The process, as it stands, is only feasible in the event

that the deceased estate consists of substantial assets to justify the immense

expenditure on legal costs.

The Simultaneous Death Act of the United States establishes, to a certain extent,

a solution to the issues of time and death. It requires persons to survive one

another by at least 120 hours to confirm that the parties did not die

simultaneously. Author suggests a further qualification of this position in that in

the event of a person being in a state of unconsciousness ( a coma ), he or she

has to be considered alive until death or resurrection. In the event that death

should occur while in this state of unconsciousness, the person should be

42

considered to have died simultaneously with the other(s). The reasoning behind

this argument is simply that in order for a person to be considered a legal

subject, he or she has to be able to conduct legal actions. Being in a coma would

exclude someone from entering into any form of legal conduct even if a curator

bonis has been appointed. If a curator bonis is appointed, a legal subject may

repudiate certain actions by the curator if the court deems it fit for him to do so.

Despite the vast implications the medicine, science and law has on society, the

opinion and belief of society cannot be ignored. The average person would not

consider simultaneous to mean anything other than that which occurs at the

same time or as a result of the same event. This is clearly in conflict with the

current legal principles and procedures of South African Law of Succession.

Author believes that death should be defined as brain death and that time should

be considered in relation to the occurrence of a common event in which two or

more people die simultaneously or incur fatal injuries as a result thereof. A further

suggested amendment to the law of succession would be the procedural aspect.

Incorporating the French position ( the presumptions ) with that of New Zealand

( the burden and degree of proof ) and the United States ( provisions of the

Simultaneous Death Act ) would seem to be the best solution for all the questions

hanging over the head of modern laws of succession. A further qualification of

the new procedures would require a person who aims to prove the contrary of

simultaneous death to render sufficient security to ensure that no assets of the

estate would be used in either instituting or defending such an action.

Author concedes that the suggested amendments to the law of succession may

not stand the test of time, but then again, the law in itself has not really stood the

test of time. The suggested amendments will, however, prevent procedures from

resulting in the exclusion of certain heirs based on their lack of financial means to

defend matters relating to their spes of inheritance or burdening of the estate

assets in defending such a matter. It would further lessen the burden on

executors of deceased estates, The Master of the High Court and the Judges.

43

In conclusion, the law is made, governed and administered by people, for people.

Over complicating matters for the sake of legal certainty will, in fact, only achieve

the contrary. As Olivier Wendell Holmes, a 19th Century professor and author,

once said:

“The life of the law has not been logic; it has been reason.”

44

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