1
SIMULTANEOUS DEATH : ARBITRARY FACT?
STEFAN DE BEER
2007008507
RSK 424
2012
MR. JT FABER
DEPARTMENT PRIVATE LAW
2
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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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?
5
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.
7
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.
8
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.
10
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.
12
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.
13
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.
14
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.
15
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.
16
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.
18
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.
19
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.
20
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
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
BIBLIOGRAPHY
AUGUSTINE ST
2006. Confessions. Indianapolis:Hackett Publishing.
BECKETT BS
1987. Biology: A Modern Introduction. Oxford:Oxford University Press.
BLACK HC
2009. Law Dictionary. 9th ed. New York:West Publishing.
BHAGAVAN NV
2002. Medical biochemistry. 4th ed. Waltham:Academic Press.
BURGESS E
1860. Translation of the Surya-Siddhanta, a text-book of Hindu
Astronomy. Journal of the American Oriental Society 6:141-498.
BUONOMANO DV
2006. The biology of time across different scales. London:Nature
Publishing Group.
BURKLE CM, SCHIPPER AM, WIJDICKS EFM
2011. Brain death and the Courts. Vol. 76. Rochester:US National Library
of Medicine.
CHADBOURN JH
1981. Evidence in Trials at Common Law. Vol. 9. Boston:Little, Brown &
Co.
CONFERENCE OF MEDICAL ROYAL COLLEGES AND THEIR FACULTIES IN
THE UNITED KINGDOM
1975. Diagnosis of brain death. British Medical Journal 2(11):1187-1188.
45
CONFERENCE OF MEDICAL ROYAL COLLEGES AND THEIR FACULTIES IN
THE UNITED KINGDOM
2004. A code of practice for the diagnosis and confirmation of death.
Unpublished dissertation.
CONWAY FX AND BERTSCHE WI
1994. The New York Simultaneous Death Law. Fordham Law Review
13:17-41.
CONSIDINE DM AND CONSIDINE GD
1985. Process instruments and controls handbook. 3rd ed. New
York:McGraw-Hill.
CRONJE D AND ROOS A
2002. Casebook on the Law of Succession. 4th ed. South Africa:UNISA
Press.
CRONJE AND HEATON
2009. Casebook on the SA Law of Persons. South Africa:LexisNexis
CRONJE AND HEATON
2009. South African Law of Persons. 3rd ed. South Africa:LexisNexis.
CUSTANCE AC
1980. The Seed of the Woman. Brockville:Doorway Publications.
DE GRAZIA D
2011. The Definition of Death. The Stanford Encyclopedia of Philosophy.
2011 ed. Stanford:Stanford University Press.
DRAKE S
1953. Dialogue Concerning the Two Chief World Systems.
California:University of California Press.
46
EBENHÖH O AND HEINRICH R
2001. Evolutionary optimization of metabolic pathways. Theoretical
reconstruction of the stoichiometry of ATP and NADH producing
systems. Bulletin of Mathematical Biology 63:21-55.
EINSTEIN A
1905. Zur Elektrodynamik bewegter Körper. Annalen der Physik 17:891.
EINSTEIN A, LORENTZ HA, WEYL H AND MINKOWSKI H
2000. The Principle of Relativity. New York:Dover Publications.
EVANS W
1963. The Chemistry of Death. Michigan:Thomas.
FINOCCHIARO MA
2007. Retrying Galileo, 1633-1992. California:University of California
Press.
GARDNER S
1999. Kant and the Critique of Pure Reason. New York:Routledge.
GRATTAN S
1996. Succession Law in Northern Ireland. Belfast:SLS Legal
Publications.
HATON A, HOPKINS S, JOHNSON CW, MCLAUGHLIN MQ, WARNER D
WRIGHT J
2010. Human Biology and Health. New Jersey:Englewood Cliffs.
HOFFENBERG R
2001. Christiaan Barnard: his first transplants and their impact on
concepts of death. British Medical Journal 323:1478-1480.
47
IVEY DG AND HUME JNP
1974. Physics. New York:Ronald Press.
JONES DA
2001. Organ Transplants and the Definition of Death. London:Linacre.
J JAMNECK
2011. The Law of Succession in South Africa. Johannesburg:Oxford
University Press.
KOKE S, GREBING C, FREI H, ANDERSON A, ASSION A, STEINMEYER G
2010. Direct frequency comb synthesis with arbitrary offset and shot-
noise-limited phase noise. Nature Photonics 4:462-465.
KOSHLAND DE
2002. The Seven Pillars of Life. Science 295:2215-2216.
KNIGHT B
2004. Knight’s Forensic Pathology. 3rd ed. UK:Oxford University Press.
LIND B, SNYDER J, KAMPSCHULTE S, SAFAR P
1976. A review of total brain ischaemia models in dogs and original
experiments on clamping the aorta. Resuscitation 4:19-31.
MAXWELL TH
1984. Miller’s Irish Probate Practice 1900. Oxford:Professional Books.
MCCARTHY D AND SEIDELMANN PK
2009. Time from Earth Rotation to Atomic Physics. Berlin:Wiler-VCH.
MORISON RS
1971. Death: Process or Event?. Science 173:694-702.
.
48
PIÑÓN R
2002. Biology of Human Reproduction. Herndon:University Science
Books.
RAUTENBACH C
2008. South African Common and Customary Law of Intestate
Succession: A Question of Harmonisation, Integration or Abolition.
Electronic Journal of Comparative Law 12.1:1-15.
RAVEN P, JONSON G, MASON K, LOSOS J AND SINGER S
2007. The capture of oxygen: Respiration. 8th ed. New York:McGraw-Hill.
REPPY A
1930. Cases on the law of succession. Chicago:Callaghan and Company.
ROELEVELD L
1970. Questions concerning simultaneous death. Acta Juridica 31-52.
SILVERTHORN DU
2004. Human Physiology: An Integrated Approach. 3rd ed. New
Jersey:Pearson Education.
SMITH KS
2003. A Commentary to Kant’s Critique of Pure Reason. London:Palgrave
Macmillan.
SPITZ W U AND FISHER R S
1973. Medicolegal investigation of death: Guidelines for the application of
pathology to crime investigation. Springfield: Charles C Thomas.
TAYLOR BN AND THOMPSON A
2006. Le Système International d’ Unités. Unpublished English
translation.
49
WATERS CE, FRENCH G AND BURT M
2004. Difficulty in brainstem death testing in the presence of high spinal
cord injury. British Journal of Anaesthesia 92(5):760-764.
WATSON E
1979. The St Albans Clock of Richard of Wallingford. Antiquarian Horology
4:372-384.
WRIGHT EB
1908. French Civil Code. Milwaukee:Gareth Stevens Incorporated.
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