The distinction between a common law presumption of death and a statutory presumption of
death order
Common law presumption Statutory presumption of
of death death
When? When a person is missing and • A person’s death was
there is no certainty as to not due to natural
whether he or she is dead or causes.
still alive. • If an aircraft is involved
in an accident in or
above the Republic or
its territorial waters, or
if any South African
aircraft is involved in an
accident anywhere.
Who can apply? Any interested party, such as The State takes the initiative,
a creditor, heir, surviving for example:
spouse or civil union partner • Judicial officer
of the missing person. (Inquests Act)
• Minister of Transport
(Aviation Act)
Burden of proof The applicant must prove on a The judicial officer must be
preponderance of probabilities certain beyond reasonable
that the missing person is doubt that the person is dead.
dead.
Court The high court in whose Police official must investigate
jurisdiction the missing person the circumstances of the
was domiciled. death and report the matter to
the magistrate of the district
concerned.
Applicable law Common law • Inquests Act 58 of 1959
• Aviation Act 74 of 1962
Effect on marriage The marriage of the missing If an inquest was held in
person is not automatically terms of the Inquests Act
dissolved, but the surviving and the finding was
spouse must bring a separate confirmed by the high court,
application in terms of the the person’s marriage or civil
Dissolution of Marriages on union is automatically
Presumption of Death Act 23 dissolved. The surviving
of 1979 in order to dissolve spouse does not need to
his or her marriage or civil make a separate application
union. for the dissolution of the
marriage or civil union.
death order
Common law presumption Statutory presumption of
of death death
When? When a person is missing and • A person’s death was
there is no certainty as to not due to natural
whether he or she is dead or causes.
still alive. • If an aircraft is involved
in an accident in or
above the Republic or
its territorial waters, or
if any South African
aircraft is involved in an
accident anywhere.
Who can apply? Any interested party, such as The State takes the initiative,
a creditor, heir, surviving for example:
spouse or civil union partner • Judicial officer
of the missing person. (Inquests Act)
• Minister of Transport
(Aviation Act)
Burden of proof The applicant must prove on a The judicial officer must be
preponderance of probabilities certain beyond reasonable
that the missing person is doubt that the person is dead.
dead.
Court The high court in whose Police official must investigate
jurisdiction the missing person the circumstances of the
was domiciled. death and report the matter to
the magistrate of the district
concerned.
Applicable law Common law • Inquests Act 58 of 1959
• Aviation Act 74 of 1962
Effect on marriage The marriage of the missing If an inquest was held in
person is not automatically terms of the Inquests Act
dissolved, but the surviving and the finding was
spouse must bring a separate confirmed by the high court,
application in terms of the the person’s marriage or civil
Dissolution of Marriages on union is automatically
Presumption of Death Act 23 dissolved. The surviving
of 1979 in order to dissolve spouse does not need to
his or her marriage or civil make a separate application
union. for the dissolution of the
marriage or civil union.
