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Summary Law and the dead
The basic terms of the law of persons used by LLB law students, it is summarised and simple.
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LAW AND THE DEADBURIAL AND OTHER DUTIES
• Boberg points out that a dead body is no longer a 'person' in the eyes of the law - instead, it is
a thing. Because the dead body is a legal object and not a legal subject, the dead body has no
rights.
• However, for practical reasons, such as public health, as well as for respect for the dead; the
law regulates the disposal of humans primarily regulated by the Births and Deaths Registration
Act.
• The important formal questions here are when, where and how such a disposal occurs. This
area of law is no corpse may be disposed of in a manner other than that prescribed by the law
of South Africa, or without the proper authority for doing so.
• The Births and Deaths Registration Act regulates the burial of human corpses and defines
'burial' as 'the burial on earth or the cremation or any other mode of disposal of a corpse.
• Bodies may only be 'buried' once the appropriate authority has issued a 'burial order.
• People in charge of burial places must be provided with the burial order, and they must register
the burial on their burial register.
• Various statutes and official institutional custom provide for several permissible forms of
disposing of human remains in South Africa:
o burial or interment on land,
o cremation' (considered a type of burial per definition in the Act),
o burial at sea, and
o legal use of the tissue or organs of the deceased for transplant or medical purposes.
• The deceased has the capacity (while alive) to provide instructions regarding the disposal of
their corpse.
• Such instructions should be followed if they are legal, reasonable and possible by those
seeking to dispose of the corpse.
• The deceased may also bequeath their body or organs for use after their death.
• Failing any instructions, or if the instructions are not legal, reasonable or possible to follow, the
choice between the first three means and venue of disposal is usually left open to the heirs or
surviving spouse of the deceased.
• If there is a dispute between these parties, it has been held that the wishes of the surviving
spouse till any should take precedence, although this is not a firm rule of law, and it is not
applied consistently.
• the deceased has not left instructions regarding the donation of their body or organs for use
after death, the surviving relatives of the deceased can donate the body or organs), If there is
no one to decide to dispose of the body, the state, through the local authority, provide the
appropriate support for what is known as a pauper's burial.
• The Director-General may also, in cases where the spouse or near relatives of the deceased
cannot be located, direct that the tissue of the diseased be donated io an authorised institution.
• Local government regulates cemeteries, crematoria and funeral parlours.
POST-MORTEM EXAMINATION
• A post-mortem is an examination of the human body by medical professionals to obtain
information of various types, including identification of the deceased and the cause of death.
, • If performed in accordance with regulations, the invasive procedures required for the post-
mortem examination are permissible infringements of the integrity of a human corpse. The
performance of post-mortem examinations is regulated, amongst others, by the Inquests Act.
• Where the corpse has been held at a mortuary for post-mortem examination as part of a
criminal investigation, the corpse will only be released to the family when the post-mortem is
complete, and any legally relevant tissue has been secured.
CRIMES INVOLVING THE HUMAN CORPSE
• Before and after disposal of the human body, the law regulates treatment of the corpse. Some
activities involving human bodies or graves are criminalised.
• The colloquially generic terms 'body snatching' and 'grave-robbery are examples of these, as
well as the criminalised sexual phenomenon of necrophilia. We will discuss these briefly.
BODY SNATCHING AND GRAVE ROBBING
• Body snatching is the removal of a corpse (or body parts) from its place of interment. In history
this has been undertaken for a variety of reasons, one of which was the obtaining of cadavers
for vivisection in pursuit of medical knowledge. Modern body snatchers service certain
medically related industries by obtaining useful human tissue from cadavers.
• Prima facie, it seems strange that the law might consider body snatching' an offence. Clearly,
this cannot be theft - a dead body cannot be owned, and therefore there are no ownership
rights that require protection. Indeed, in South African law, the crime of theft in relation to a
corpse is not possible, since the corpse is res extra commerium (a thing outside commerce
which cannot be owned)
• The usual explanation for the protection apparently lies in the protection of the interest of the
community at large, but we would urge a critical and cautionary stance to explanations that
assume a single homogenous moral attitude or interest in a community as culturally diverse as
that of South Africa.
• Grave-robbery is related to body snatching and entails the disturbance of a grave or
consecrated ground, usually to forage for and obtain artefacts for collection or for sale. South
African law criminalises both body snatching and grave-robbery as the offence of violating a
grave, which includes both disturbance of the human body and any artefacts associated with
the corpse.
• The reason for creating an offence around this activity, it is suggested by most writers, is not
that it can harm the deceased in any way (remember, in our law a corpse has no legal
personality) but, again, that it constitutes an affront to relatives of the deceased or to the
community mores.
• In South Africa, historically significant graves or sacred grounds are protected under national or
regional cultural heritage legislation, such as the National Heritage Resources Act.
• It is useful to note that any final resting place of a human may become a protected site. For
example, it is not unusual for a sunken ship in which passengers and crew are known to have
drowned, to be declared a grave site and thus its exploration and disturbance limited by
regulation. Many sunken naval vessels as well as some famous civilian ships have been so
protected.
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