South Africa: Vulnerable Persons and Groups in a Vulnerable Democracy — Can Forensic Medical Services Help to Ensure Justice in Critical Times?

Medicolegal Investigation of Death in South Africa

The medicolegal investigation of death in SA is, in essence, based upon the British inquest system, effectively residing under the jurisdiction of the inquest magistrate and/or the Director of Public Prosecutions (DPP). However, forensic medical practitioners and pathologists (employed by the provincial departments of health) in reality have almost full autonomy and discretion regarding the scope and nature of forensic medical investigations conducted in any case, with reference also to the range of special investigations that may be required. Prior to 2006, medicolegal mortuaries resided under the auspices of SAPS, but by parliamentary statute all medicolegal mortuaries and forensic pathology services were transferred to the Department of Health in 2006. The SAPS retain full responsibility for criminal investigations and jurisdiction over crime scenes, but the participation and contribution of forensic medical practitioners and scientists is now entrenched in law, allowing for full access by pathologists to information regarding the scene and relevant history (medical or other) and also establishing the role of forensic pathologists as advisors and participants in further medicolegal and other proceedings (including, for example, acting as assessors at inquests or criminal trials advising on the need for exhumations, fiscal/policy requirements, and legislative initiatives).

In 2008, the relatively bold step was taken to specify in national legislation the parameters that define unnatural deaths in SA (5). Simplistically put, unnatural deaths have been defined to comprise the following: 1) all deaths which are due to the effects of physical forces or chemical influences, or of complications related to these; 2) deaths which would otherwise be deemed to have been due to natural causes, but which may be deemed to have been the result of negligence, where a duty to act had prevailed; 3) deaths specifically associated with or due to medical treatment or procedures; and 4) sudden unexpected and/or unexplained deaths. Although some measure of uncertainty – and in some instances, dispute – still exists regarding the classification of individual cases, this legislation has provided far greater clarity and direction in terms of the requirements to refer deaths for forensic medical investigation or otherwise.

Furthermore, the provision that deaths of persons that would otherwise be deemed to have been due to natural causes, but which may have come about as a result of failure to provide proper medical treatment, also empirically require forensic investigation, serves to ensure that even deaths which may have been the result of underlying conditions such as tuberculosis or diabetes mellitus may require investigation if there is reason to believe that inappropriate treatment or negligent management of the patient may have caused or contributed to the demise of the patient. It is this latter provision that has recently been invoked in respect of a number of highly contentious deaths of mentally ill patients who had been discharged from specialist treatment facilities (see below).

The heavy caseload and budget constraints, which are almost inevitable in a developing country where competition for fiscal and other resource allocation coming from the demands of primary health care and other health needs will almost certainly impact negatively on allocations for forensic services, make the job of forensic pathologists a lot more difficult here. But, perhaps, there is some reward in the abundance and wide spectrum of very interesting cases that we encounter on an almost daily basis. In particular, over the past few years, there have been specific instances and series of cases which have, again, brought to the fore the complexities that may confront forensic medical practitioners and which have highlighted the need for a professional, independent, and efficient medicolegal death investigation of service. This is all the more important in countries where the role and accountability of state agencies must be more closely monitored and checked by civil watchdog entities and structures. In this regard, a number of recent specific events and scenarios that relate strongly to the theme of this issue of Academic Forensic Pathology may be explored.

Deaths in Custody from Steve Biko to the Marikana Massacre

During the latter years of the apartheid era, it may be said that SA was, in effect, a police state, with the police and civil security agencies having almost limitless resources and power. One of the important turning points in the battle for social justice in SA came in the form of the death of a black political activist in 1977 at the hands of police officers who had arrested and interrogated him. Steve Biko was a medical student and activist who sustained serious injuries whilst in detention and before being brought to trial. His death caused an international furor and much embarrassment for the then apartheid regime. Indeed, the subsequent inquest proceedings were reenacted in a Broadway play some years later. Of course, there were many other similar unfortunate events and (unheralded) deaths of political activists, but there can be little dispute that the cumulative exposure of the facts surrounding such deaths ultimately contributed, in no small measure, to the demise and accountability of the then government. The objective and professional investigation of such deaths remains one of the truly essential functions that forensic pathologists should undertake with utter commitment and always striving to ensure that they (and the framework within which they render their services) are as free as they can be of political control and state influence. There are probably very few countries in the world that do not have (proverbial) skeletons of this nature in the cupboard: whilst many developed countries have implemented strict and prescriptive investigative protocols pertaining to such death in custody cases, the problem of extrajudicial killings and the inadequate investigation of deaths of individuals who may have died at the hands of state forces and agencies remains a huge international problem. It is hoped that the advent of the recently revised Minnesota Protocol will bring fresh impetus to defining and standardizing the medicolegal investigation of such deaths – a protocol which, incidentally, was revised under the guidance of a human rights activist and expert from the University of Pretoria, Professor Christof Heyns, with the help of many international experts and agencies. Whether the Minnesota Protocol will be effectively implemented in those countries that perhaps need it most remains to be seen.

There are, nonetheless, two categories of custody-related deaths that require special attention in SA, and if such review serves to sensitize other persons and countries to be constantly wary and mindful of such threats, a good purpose will have been served. These categories relate to the deaths of sentenced inmates in correctional facilities as well as “deaths due to police action” before and/or during arrest. Whilst deaths of persons as a result of police action, during or after arrest, are almost always subjected to intense media and judicial review in SA, the same cannot be said of deaths that take place after due legal process has been followed and persons have been sentenced to detention in correctional facilities. Whilst the unnatural deaths of inmates in such facilities are indeed subjected to full investigation by the SAPS and forensic medical review (including autopsy), the level of scrutiny afforded deaths of inmates who have ostensibly died from natural causes in correctional service facilities and penitentiaries is probably a different matter altogether. South Africa has a massive prison population, probably reflecting the crime-ridden society in which we live, and limited resources are available to sustain these facilities and inmates. According to the World Prison Population List 2013, on the continent of Africa SA is second only to Rwanda for the highest rate of incarceration (reported to be 294/100 000 of the population, with a total inmate count of 156 000 in 2013) and globally, amongst countries with a population exceeding 50 million people, only the US and the Russian Federation have higher rates of imprisonment (6). There can be little doubt that interpersonal conflict amongst inmates and prison gang violence, increased incidence of suicide, and unhealthy activities such as illicit drug use contribute to a higher than average nonnatural death rate amongst inmates (7). Internationally, a number of researchers have reported that there is also an increased risk of death due to natural causes, especially implicating disease conditions such as HIV/AIDS and tuberculosis (8, 9). South Africa wears the further dark mantle of possibly having the highest burden of these two diseases in the world, with an estimated 500 000 new cases of tuberculosis (and some 70 000 deaths) annually (10). Despite the provisions of the Correctional Services Act, which prescribes the investigation of all deaths in prisons by the Judicial Inspectorate for Correctional Services (JICS), substantial questions arise as to whether there is adequate review and investigation of deaths of inmates who die from causes other than obvious violence or nonnatural causes. Unfortunately, unlike the prescribed policy in many Western countries, there is no mandatory medicolegal review and thorough scrutiny of such deaths, even if only to independently evaluate the available clinical medical records or case histories. There are numerous complaints and allegations (arising from inmates and/or the next of kin) of abuse and maltreatment, inadequate nursing care and medical treatment, or even gross medical negligence in correctional service facilities. It should be the role and jurisdiction of a specialized forensic medical service to thoroughly evaluate every death of a person who was detained in a state or private facility (for whatever reason) even if the death appeared to have been one due to natural causes. As stated years ago by then Lord Chief Justice Hewart in England:

According to the 2014-15 annual report of the JICS, there were 46 unnatural deaths in prisons in SA, with a further 62 in the following year (12). By contrast, there were 583 natural deaths from 2014 to 2015 and 511 in the 2015-2016 reporting period. It is debatable as to whether the strict and consistent application of the abovementioned criteria for defining unnatural death would have yielded such a relatively low number of unnatural deaths in this subset of the population. Unfortunately, the JICS reports do not provide crude death or standardized mortality rates for prisons in SA, making comparisons with the nonincarcerated populations or prison populations in other parts of the world very difficult. Using the data provided by JICS and the World Prison Population List, a crude death rate for prisoners in SA may be calculated to be approximately 385/100 000. This seems to correlate fairly well with figures published for deaths of inmates in prisons in Canada, where a study of 283 prisoner deaths over the ten-year period 1990-1999 revealed a crude death rate of between 211 and 420/100 000 (7). Similarly, Bureau of Justice statistics for 2005 revealed the all-cause average annual death rates for prisoners in the US to be 244/100 000 (13). It is, unfortunately, only when things have gone terribly wrong (and most often in retrospect) that governments and state agencies realize the value and role of sustained vigilance and a dedicated and professional forensic pathology service in society. Until such a system of routine review of custodial deaths is instituted in SA, the very real risk will remain of a series of events or a major incident similar in nature to the debacle that has recently engulfed the Gauteng provincial department of health in respect of mentally ill patients and inmates (see below).

Steve Biko sustained injuries during interrogation by security police in Port Elizabeth. It was then decided to transfer him to Pretoria, the capital city, almost a 1000 km away. Prior to the transfer, he was evaluated by two medical practitioners responsible for providing medical care to prisoners and detainees and who gave the approval for his subsequent transfer (by road in the back of a police utility vehicle). He died shortly after his arrival in Pretoria, where a detailed medicolegal autopsy (attended to by three of the most senior pathologists in the country) revealed the presence of severe intracranial injury and hemorrhage. Subsequently, albeit many years later, after a disciplinary review by the HPCSA, one of the doctors who had authorized the transfer of Biko was struck off the medical register for not having duly exercised his professional duties and ethical obligations to his patient. Dr. Benjamin Tucker subsequently apologized to Biko's next of kin. The words he spoke then should be indelibly inscribed upon the hearts and minds of all medical practitioners who render forensic medical services:

There is, indeed, very real risk that physicians who render professional services at correctional service centers may (insidiously and even subconsciously) become tolerant and desensitized to inefficiencies and inadequacies in health care services to inmates and may even become subservient to prison/state authorities. It is for this reason that thorough and routine forensic medical review be undertaken on all deaths of persons in custody, including those who are reported to have died from natural causes.

A second perspective on the importance of systematized and structured review of deaths related to police activity is provided by the following brief discussion. On August 16, 2012, at the Lonmin platinum mine in Marikana, some 100 km northwest of Johannesburg, police officers opened fire using military assault rifles on a group of striking miners who were armed with traditional weapons such as spears and fighting sticks that had taken up a threatening position in confrontation with the police, fatally injuring 34 of the miners and wounding another 78. This outcome did not result from a “moment of madness,” but was probably the culmination of days of increasingly hostile confrontation including the killing of two police officers and two security guards in preceding days. A judicial commission of inquiry into the deaths was convened, with the subsequent investigation revealing many serious issues, not least of which was that the deputy president of SA, Cyril Ramaphosa, had been a key role player in the contemporaneous debate and discussions surrounding the strike, in his capacity as (nonexecutive) director of the mining company concerned. It was suggested that he may have used his political influence with key figures like the Minister of Police and the National Commissioner of Police to intervene in the strike. Detailed and time consuming medicolegal autopsies were conducted on all the decedents of the “Marikana Massacre” involving state pathologists and privately appointed pathologists in a watching brief capacity. The commission, headed by Judge Ian Farlam, came up with a number of findings and proposal including the following:

In addition, it was recommended that an inquiry be held into the fitness of the National Commissioner of Police to hold office. Indeed, the latter process recently resulted in the suspension of the national commissioner of police. Further, and probably far reaching, criminal and civil actions are likely to follow yet.

The actions of the police on that fateful day cannot be seen without reference to the broader sociopolitical scenario in SA, with specific reference to the role and functioning of the SAPS: in a society wracked by violence, the killing of police officers (both on and off duty) have become the order of the day, with a previous commissioner of police declaring in 2009 that the law needs to be changed in order to allow police officers to “shoot to kill” criminals without worrying about “what happens after that” (16). It is noteworthy that the same police commissioner, Bheki Cele, is quoted as having stated that “The problem we are facing is that the police force is seen as a failure organization …” (16). The latter statement must be juxtaposed against the fact that Commissioner Cele had replaced the previous national commissioner Jackie Selebi (who also served as the president of Interpol, Selebi himself having been dismissed for corruption and subsequently found guilty in a criminal trial). Commissioner Cele too was later dismissed from office by President Zuma for corruption within two years of taking office. Cele was succeeded by Commissioner Riah Phiyega who, as stated above, was dismissed for incompetence after the Marikana massacre. This sequence of events was further compounded by the fact that the acting commissioner, who was appointed upon Phiyega's dismissal, he himself lasted only approximately one year before he too was dismissed in 2017 on the basis of allegations of bribery and corruption. This devastating sequence of events, with effectively four successive national Commissioners of Police being dismissed for allegations of bribery, corruption, and misconduct or incompetence has dealt an almost fatal blow to the reputation of the police and the remaining confidence which the South African public may have had for the police force. It is on this stage, undoubtedly coupled with broader social issues, that the phenomenon of bundu justice and mob killings has taken hold on an unprecedented scale in SA.

Community Assault/Mob Justice Fatalities of Xenophobia and a Failed State

Mob justice, jungle justice, and bundu justice are terms commonly used to describe the (usually impromptu) punishment inflicted on individuals or small groups of persons who are informally charged with a crime and then (almost) immediately beaten or otherwise punished by angry crowds or self-appointed vigilante groups. Most countries have a history of such events but the incidence of this phenomenon currently seems to be greatest in sub-Saharan Africa. Internet searches reveal multiple reports of such events from African countries such as Kenya, Uganda, Tanzania, and Nigeria and which seem to indicate that mob punishments occur regularly—many of these Internet video clips depicting horrific scenes of violence and fatal injury to victims. Despite the relative abundance of such media reports, there have unfortunately been very few scientific reviews and published studies reporting objectively on this phenomenon, especially in the countries now apparently most severely afflicted with this phenomenon.

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Various authors have suggested that loss of faith in the ability of the police to apprehend criminals and bring them to trial are to blame, compounded by perceptions of corruption and incompetence amongst police and other justice officials. Some claim that the rise of such activity is a strong indicator of a “failed state” in any given country. Undeniably, the root causes of this phenomenon are multiple and complex, requiring much study and discourse, involving criminologists and other social scientists, as well as politicians. However, forensic pathologists can add substantially to the body of knowledge regarding these deaths if they are properly investigated and recorded, more so perhaps in terms of the spectrum of injuries sustained and the circumstances surrounding these events. In SA, the principle and practice of community justice has been entrenched in certain communities for many years, with roots in tribal and urban culture, such as lekgotlas (which were tribunals convened to mete out justice informally in communities often not properly served by the police or state agencies). The surge in violent gang activities in the urban regions around Cape Town towards the end of the previous century led to the formation of the notorious vigilante group PAGAD (People Against Gangsterism and Drugs) units in the 1990s, who often took the law into their own hands, and which in turn brought these bodies and persons into serious conflict with the police and the law. Today, most mob justice events appear to be less organized or structured, with immediate and incidental flare-ups of violence and mob frenzy often resulting in a fatal outcome for victims.

One subset of mob violence seems to stand out in SA: the high numbers of undocumented immigrants (believed to be in excess of 3 million people) that have flocked to this country over the past decade or two have strained relations, especially in informal settlement communities, where the high rate of unemployment has led to accusations of “job stealing” and resulting in sporadic outbursts of violence against any or all members of immigrant groups (18). A sudden flare-up of such cases was experienced in SA in 2007-2008, with a more recent further surge in such events. In many cases, the victims are not specifically accused of having committed a crime, but are targeted simply for being of foreign nationality. Although most political leaders and parties condemn such xenophobic attacks, others, like the Zulu king, have taken a harder stance. In 2015, it was reported that King Goodwill Zwelithini had publicly…

In 2015, Herbst et al. reported on the profile and prevalence of cases and the injuries seen in fatally injured victims at the Tygerberg Forensic Pathology Service Laboratory in Cape Town (20). Their series included 424 fatal outcome cases seen over a ten-year period (2003 to 2012) at one large urban mortuary but did not account for cases seen at other mortuaries in the Cape Town precinct or surrounding areas. Thus, it is difficult to estimate the true incidence or magnitude of the problem, but it is possible that the total number of cases for the greater Cape Town metropole may have approximated a thousand such cases over the decade in question. This is a frightening statistic indeed, for a city deemed to be one of the world's favorite tourist destinations.

A more recent, as yet unpublished, similar study undertaken at the Pretoria Medicolegal mortuary in the capital city of SA by Mabotja et al. for the period 2011 to 2016 has provisionally identified well over 200 such cases, with what appears to be a definite increase in cases over recent months and years (21). Based on these figures, forensic pathologists in the province of Gauteng may have encountered as many as 2500 to 3000 mob killings over the past decade. Whilst this figure urgently requires validation, Gauteng (literally, “place of gold” in the Sotho language) may now be the region with the highest rate of bundu justice fatalities in the world. The pathology of injuries sustained, complications suffered, and mechanism(s) of death needs to be properly documented. Traumatic rhabdomyolysis and renal failure, metabolic and electrolyte disturbances, and fat embolism are potential mechanisms of death. Another less clearly defined mechanism of death possibly implicating complex neurohumoral pathways (with autopsy revealing little or no evidence of traumatic injury) may also need to be considered. It is clear that not only should this phenomenon be studied more closely from an epidemiological and demographic perspective, but that attention must also be given to the injuries and related pathophysiological consequences which follow in these victims and in surviving victims of such practices.

Deaths of Mentally Ill/Handicapped Persons and Patients: The Life Esidimeni Saga in South Africa

During March 2016, the Gauteng Department of Health terminated its contract with a private health services provider regarding the care given to more than a 1000 mentally ill patients for whom the state had been responsible. The patients were displaced to a number of nongovernmental organizations and “clinics,” some of which were alleged not to have appropriate staff and/or facilities to care for such indigent patients (22). Over the ensuing months, many of these patients suffered severe neglect and died. In most cases, no subsequent review of the circumstances of death or postmortem examinations were undertaken, whilst some of the decedents had been buried as unidentified individuals without notification thereof to the next of kin. A public outcry subsequently arose as many relatives of the decedents claimed that they had not been informed of the transfer of the patients, of their subsequent whereabouts, or even of their deaths. After some procrastination, the Health Ombudsman was officially appointed to review the entire matter and all the fatal outcome cases. Public calls were made for the resignation of senior health officials including those of the national minister of health, the premier of Gauteng, and the provincial minister of health (MEC). Indeed, the MEC of Health subsequently tendered her resignation but the political fallout and dust certainly seems not to have settled yet. In February 2017, the much awaited report of the Health Ombudsman, Professor Malegapuru Makgoba, was released under the following rather ominous title, “Report into the circumstances surrounding the deaths of mentally ill patients: Gauteng Province. No Guns. 94+ Silent deaths and still counting” (22). The report relates a very disturbing account regarding the management of these most vulnerable members of society, with reference also to the indignities suffered after death. Over the ensuing months, more of these patients have been identified and have, indeed, died. Many medicolegal autopsies were later performed on the bodies of deceased persons who had in some cases been dead for months without having been buried. Subsequent to the release of the Ombudsman's report, more deaths have taken place and in some cases, autopsies continue to be performed where allegations of medical and/or nursing mismanagement have surfaced. There are further legal processes which will inevitably follow: public inquest hearings, civil litigation, and even criminal charges are very likely in a number of cases whilst disciplinary proceedings involving health care professionals are also to be expected.

The major lesson to be learnt from this debacle (at least from a forensic medical perspective) is, yet again, that there is a need for the prescribed and systematic review of deaths of persons who have been deprived of their civil liberties or who are in the care of state or other agencies, especially where there is little institutional or independent oversight or review of “inmates” or patients. In most developed societies, this practice is established, either in law or by custom. In other countries, it seems that only the sad sequence of events as have unfolded in respect of the “Life Esidimeni Saga” will lead to implementation of measures, which will serve to protect the interests of these vulnerable persons and those of relatives. Whilst routine medicolegal autopsies are probably not indicated in all such cases, the need for independent medicolegal review and scrutiny of these case histories, preferably by a senior clinician and/or a forensic medical practitioner, is strongly advocated.