Law & the dead

• Deceased's remains after registration of death


  • Dead body is no longer a 'person' in the eyes of the law - instead, it is a "thing"
  • Dead body has no rights as it is a legal object and not a legal subject
• Disposal of the human corpse

  • Regulated by the Births and Deaths Registration Act law
  • For practical reasons, which includes for public health, as well as for 'respect for the dead'
• Burial


  The burial in earth or the cremation or any other mode of disposal of a corpse
• No corpse may be disposed of in any manner other than that prescribed by the law of South Africa, or without the proper authority for doing so
• Births and Deaths Registration Act


  Regulates the burial of human corpses
• Burial of a body

  1. Appropriate authority issues a 'burial order'

  2. Cemetery/crematorium registers the burial in their burial register
• Bodies may only be 'buried' once the appropriate authority has issued a 'burial order'
• Permissible forms of disposal of human remains in South Africa

  • Burial or interment on land
  • Cremation
  • Burial at sea
  • Legal use of the tissue or organs of the deceased for transplant or medical purposes
• Burial and other duties

  Process for disposal of a corpse by burial
• Before a person dies, he may choose what is to happen to his remains after death, including choosing that his body be donated
• If the deceased left written or even verbal instructions on her funeral or burial place, effect must be given to this as far as possible and permissible
• In the case of verbal instructions there must be clear proof of these instructions, especially if they contradict written instructions the deceased gave at different time
• Unless otherwise stated, it is the duty of the persons named as heirs in the deceased's last will to bury him
• Heirs also have the right to determine the deceased last resting place if the deceased did not make provision
• Means and venue of disposal for a deceased individual


  • Where there are no instructions or the instructions provided 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
  • Normally, the wishes of the surviving spouse take precedence in this regard
• Donation of body or organs after death

  1. If the deceased has not left instructions, the surviving relatives of the deceased can donate the body or organs

  2. If there are no family members who can make this decision, the State provides the deceased person with a pauper's burial
• Post-mortem examination


  Examination done to discover the identity of the deceased and the cause of death
• Post-mortem examination is considered a permissible infringement of the integrity of the corpse
• Post-mortem examination


  • Regulated by the Inquests Act 58 of 1959
  • Regulated by the National Health Act 61 of 2003
• If the person died as a result of a crime

  The body will not be released for burial until the examination is complete and relevant tissue has been secured
• Crimes involving the human corpse

  • Body snatching
  • Grave robbing
  • Necrophilia
  • Use of human tissue pre-and post-mortem
  • Use of human tissue and human organs
• Body snatching


  Removal of a corpse (or parts thereof) from its place of internment
• Grave robbing


  Disturbance of a grave or consecrated ground
• Body snatching cannot be regarded as theft since a dead body cannot be owned (res extra commercium)
• It is the interests of the community at large that need protection by the law, not ownership rights
• Grave-robbing is usually done to forage for artifacts for collection or sale
• Both body snatching and grave robbing is criminalized as "violating a grave"
• Any final resting place may be declared a grave site, e.g. a sunken ship
• Exploration of declared grave sites will then be limited
• How South African law criminalises necrophilia

  1. Codified as a crime under the Criminal Law (Sexual Offences and Related matters) Amendment Act 32 of 2007

  2. Any person who unlawfully and intentionally commits a sexual act with a human corpse is guilty of an offence
• Necrophilia


  Categorized as a crime against the community / crime against sexual morality