IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT)

 

 

DELETE WHICHEVER IS NOT APPLICABLE

(I) 

OF INTEREST To OTHER 

(3) REVISED. 

 

 

SIGNATURE

 

 

In the matter between:
ROBERT JAMES STRANSHAM-FORD

And

MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES

THE MINISTER OF HEALTH 

THE HEALTH PROFESSIONAL COUNCIL
OF SOUTH AFRICA

THE NATIONAL DIRECTOR

OF PUBLIC PROSECUTION

Case Number: 27h01/15

APPLICANT

FIRST RESPONDENT
SECOND RESPONDENT

THIRD RESPONDENT

FOURTH RESPONDENT

 

 

 

JUDGMENT

 

Fabricius J,

This is an urgent application which in my view requires an immediate decision, and
accordingly in the limited time available to me, I have done everything i could to
enable me to make an order and give written reasons shortly thereafter. Having

regard to the topic it will be preferable and, no doubt this will occur in due course,



Judge in the Urgent Court is therefore somewhat at a disadvantage in this context.

Nevertheless one must proceed with courage and fortitude no matter what the topic

 

 and then produce a Bill which could be subject to the scrutiny of the Courts.
The South African Law Commission compiled a report on ?Euthanasia and the
artificia/ preservation of life?in November 1998, which was submitted to the then
Minister of Health. The Third Respondent said that the report did not receive the
attention of the Minister and/or the legislature at the time, because there were other
urgent matters which required attention such as the AIDS epidemic. it is now 16
years hence and although I cannot proscribe this for the Second Respondent, the
topic is in my view important enough, having regard to the relevant principles
contained in the Bill of Rights, that serious consideration be given to introducing a

Bill on the basis of the South African Law Commission's Report, which suggested a

number of options, but supported the development of the common law in this

context. It is broad discussion, but in the context of



x_ 

the Bill of Rights especially.

 

The Applicant is an unmarried adult male practicing Advocate of the High Court of
South Africa. He resides in Cape Town. He was born in 191+9. He is the holder of a
number of law degrees. has an MBA from the University of Cape Town and a
number of other diplomas. He has worked as an Accountant and Tax Practitioner in
London and was a Chief Executive of a group of Insurance Brokers at Lloyds in the
City of London. He has been an Advocate for about 35 years and was also admitted
as an Advocate of the High Court of South Africa in 2001, and was a member of
the Johannesburg Bar. He has lived and worked all over the world. He has four
children, three of whom are over the age of 25, and has a daughter of 12 years old
under the guardianship of her mother, who also made a Confirmatory Affidavit in

these proceedings. I say this-to indicate that I am dealing with an Applicant who is a



 

highly qualified, of vast experience also in the legal profession, and who knows



exactly what he requires and why. A glinicalwlisy?chologist also provided a report in

a

this context, dated 10 April 2015. She stated that Applicant was well engaged in the

interview and she found no cognitive impairments. There was no evidence of any

 disorder and he particularly impressed as being totally rationalg?/
Specifically, Applicant displayed a good understanding and appreciation of the
nature, cause and prognosis of his illness and clinical, ethical and legal aspects of

assisted suicide.

Applicant has terminal stage 1+ cancer and has only a few weeks left to live. This

was not an issue. [He died on the day I made my Order.]

In these urgent proceedings Applicant seeks the following order:

2. ?Declaring that the Applicant may request a medical practitioner, registered
as such in terms of the Health Professions Act 56 of 7974- medical
practitioner"), to end his life or to enable the Applicant to end his life by the

administration or provision of some or other lethal agent;

 

3. Declaring that the medical practitioner who administers or provides some or
other lethal agent to the Applicant, as contemplated in prayer 2 supra, shall
not be held accountable and shall be free from any civil, criminal or
disciplinary llability that may otherwise have arisen from:

3.1 The administration or provision of some or other lethal agent to the Applicant;

3.2 The cessation of the Applicant?s life as a result of the administration or
provision of some or other lethal agent to the 

Li. To the extent required developing the common law, by declaringthe conduct
in prayers 2. and 3. supra, lawful and constitutional in the circumstances of

this matter.?

Applicant?s questions: 

 

5.1
it conceivable that the health of a person may deteriorate to a level, where he

would be justified in wishing to take his own life (?the sufferer");

 

5.2
Ought the sufferer be permitted to take his own life;
5.3
Should another person be allowed to the sufferer to end his life (?the
Samaritan?);
5.4
May this person be a medlcal practitioner;
5.5

Which safeguards need to be in place?

The Applicant?s health:

 

Applicant was provisionally diagnosed with Adema carcinoma (Gleason grade
9/10) on 19 February 2013. During March 2015, Applicant underwent an
ultrasound biopsy and it was established that the cancer had metastaslzed in his

glands. Also during March 2015 he was admitted to the Victoria Hospital as

 

an emergency, and in great pain. He has since had to have his removed. It
was further discovered that the Applicant?s cancer had spread to his lower spine,
kidneys and nodes. The Third Respondent obtained a report of Dr. R. A. G.
De Muelenaere, a radiation oncologist of 26 years standing, and in private practice
since July 1998. This report is not under oath. He also did not examine the patient
personally and his opinion was based solely on the contents of the documentation
contained in the Court application. In the context of the tests relating to the
diagnosis of prostate cancer, he said that the findings were suspicious of colo?rectal
cancer including pancreas and liver cancer, not prostate cancer. This debate is-not
necessary herein, inasmuch as it has not been put in issue that the cancer is
terminal and that the Applicant only has a short time to live. However he added the
following and I will have brief comments-to make about-this hereunder: "there are
palliative medical treatments available which can improve the situation for a 
period of time. I have sympathy for a patient with widespread metastatic cancer and
in my work I have to deal with such situations on a regular basis. I understand a

patient asking for "an. outfibut there are important factors to consider in a

 

case like this. Wider societal aspects need to be addressed, as in the debate

preceding abortion legislation. All moral, legal and ethical aspects need to be

discussed. With modern medicine Including high doses of opioid (morphine-like)

drugs less than 10 of patients will die in pain, regardless of kidney function.

(doses can be tri-trated to patient needs and side effects).

Hospice doctors and staff specialise in control of terminal patients and this

service can be provided at home in the vast majority of patients. Most medical funds

will allow home nursing as a benefit and terminal care definitely does not need to be

provided in a hospital setting for the majority of cases-if that would be the patient's

wish.

All and all I consider this request for ?assisted-suicide? to be against the current

medical practice.? 

Applicant responded by- saying that this palliative care does not satisfy his need and

right to die in dignity whilst fully aware of the moment of his death.

 

10

Applicant's quality of life:

 

Applicant?s quality of life has deteriorated markedly since the middle of March 2015

and he says that he:

7.1

Suffers from severe pain, nausea, vomiting, stomach cramps, constipation,

disorientation, weight loss, loss of appetite, high blood pressure, increased

weakness and frailty related to the kidney metastasis:-

7.2

He is unable to get out of bed and has injections and drips;

7.3

- Endures anxiety;

7.4

Cannot sleep without morphine or other painkillers;

7.5

Uses pain medication, which makes him somnolent.

 

11

Applicant's treatment:

 

8.1

The doctors, their dlagnosls and prognosis:

 

Applicant was examined by a specialist urologist and a general practitioner who

lectures and specialises in palliative care, both of whom confirm the Applicant?s

diagnosis and prognosls.

-

Medicine, procedures and traditional remedies:

 

has undergone numerous'treatments,? medicines or tradltional remedies,
including:

8.2.1 - Dendritic cell therapy;

8.2.2 Tradltlonal Chinese medicine;

8.2.3 Vedic medicine;

8.2.l+ Surgery;

8.2.5 Cannabis;

 

12.

8.2.6 The Insertion of a renal stent for his kidneys from his kidneys to his bladder;

8.2.7 The insertion of a catheter fitter;

8.2.8 Morphine, Buscopan and other pain inhibitors.

He is currently under palliative care.

Imminent future:

9.1

Acceptance of death: .

 

Applicant is acutely aware and has accepted that his death is imminent. This issue

is not in dispute.

9.2

Worsening condition:

 

As time progresses the Applicant?s condition will become progressively worse and

will later on require an even stronger doses of opioid drugs such as morphine and to

possibly be hospitalized.

 

.13

9.3
Increased frailty:

He is becoming weaker by the day and needs constant assistance in normal daily
activities such as getting up from bed, bathing, brushing his teeth and eating.

9.Lr

Progression of the disease:

As the Applicant?s disease progresses and until his last breath, he will become
confused and afraid. His last breath might even be with the aid of a machine.

9.5 -

Applicant?s fear:

Applicant says that he is not afraid of dying, he is afraid of dying while suffering.

 

14

10.
Current legal position:
Current Law:
The current legal position is that assisted suicide or actiVe voluntary euthanasia is
unlawful.
See: 5 vs 09 Bel/act; 7.975 (3) SA 538 (T) at 53.9 at and vs Marengo 1.9.parte Minister van Jusrisie: In re 8 vs Grot/ohn

7970 (2) SA 355 A.

Development of the Law required:
Applicant and his Counsel relied on S. 39 of- the Constitution which reads as
follows: ?39 Interpretation of Bill of Rights
(1) When interpreting the Bill of Rights, a Court, Tribunal or Forum 
a) Must promote the values that underlie an open and democratic society
based on human dignity, equality and freedom;

b) Must consider International Law; and

15

c) May consider foreign law.

(2) When interpreting any legislation, and when developing the common or

customary law, every Court, tribunal or forum must (I underline) promote

the spirit, purport the objects of the Bill of Rights?. Further, s. 8 (3) of the

Constitution states that ?when a provision of the Bill of Rights to

a natural of juristic person in terms of subsection (2), a Court -

a) in order to give effect to a right in the Bill, must (I underllne) apply, or if

necessary develop, the common law to the extent that legislation does not

give effect to that right and

b) May develop rules- of the common law to limit the right, provided the

limitation is in accordance with S. 36 

ln Bel Porto School Governing Body vs Premier Western Cape 2002 (3) SA 265

CO the Court at 3% said that the provision of remedies is open?ended and therefor

inherently flexible in this context. The appropriateness of the remedy would be

determined by the facts of the particular case.

 

16

It is therefore not a matter of discretion or personal ?Inclination? as it was put in

Court, but rather a constitutional imperative. My personal thoughts and feelings are

irrelevant and do not enter the picture at all in the decision-making.

11.

Basis of Applicant's relief:

 

The Constitution:

The Applicant relies on the following provisions of the Constitution and in particular

the Bill of Rights:

11.1

Chapter 1:

Founding provisions:

 

Section 1:

The Republic of South Africa is one, sovereign, democratic State founded on the

following values:

 

 

17.

a) Human dignity, the achievement of equality and the advancement of human

rights and freedoms.

11.2

Chapter 2:

Bill of Rights:

Section 7:

This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the

rights of all people in our country and affirms the democratic values of human

dignity, equality and freedom.

2) the State must respect, protect, promote and fulfil the rights in the Bill of Rights.?

11.3

Application: S. 8:

a) When applying a provision of the Bill of Rights to a natural or juristic person

in terms of subsection (2), a Court in order to effect to a right in the Bill, must

apply, or if necessary develop, the common law to the extent that legislation does

not give effect to that right.?

 

18



Human dignity:

Section 10:

?Everyone has inherent dignity and the right to have their dignity respected and

protected 

1)

e)

2)

b)

11.5

Freedom and security of the person:

Section 12:

Everyone has a right to freedom and security of the person which includes

the right 

"Not to be treated or punished in a cruel, inhuman or degrading way.?

Everyone has the right to bodily and integrity, which includes

the right -

To security in and control over their body."

 

19.

12.
Freedom' security and control to die with dignity:
Before I continue with Applicant's argument i deem it desirable to say something
about the role of dignity in our constitutional dispensation (in general and in the
present context). The seminal work on this topic is HUMAN L- for
Equality in South Africa, 1.. Ackermann, Jute. The principle of human dignity as a
central value of the ?objective, normative value system" established by the
Constitution has in my view a pre-irnminent value. In vs Makwanyane 19.95 (3)
SA 391 (CC). At par. 329 it was said that ?recognition and protection of human
dignity is the touch stone of the new political order and is fundamental to the new--
Constitution.? In the context of s. 10 read with s. and 7 (2), Ackermann says that
human dignity, besides being avalue and a right,.is also a categorical imperative. i
have approached this application on that basis. in the context of the duty of the
State regarding this imperative, it is best to refer to the views of the Constitutional
Court in GIenister vs President of the Republic of South Africa 2011 (3) SA 347

CO at pat: 139 - 1.91.

20

Just prior to the hearing of this case I admitted DOOTORS FOR LIFE INT. and
CAUSE FOR JUSTICE as amfci curiae, and received their affidavits. I cannot deal
with all their arguments propounded in the affidavits: some were clearly
inappropriate and others paid scant attention to the imperative contained in s. 3 (3)
of the Bil! of Rights. I did consider them all though. One such argument on behalf
of the latter was that Applicant had merely or solely expressed his subjective view of
dignity and his medical condition, whereas the values of the Constitution had to be
looked at, and determined objectively. There are two answers to this submission: of
course a Court must, as a practical necessity look at the subjective views of - and
the condition of a person who complains that his constitutional rights have been
affected. In the present context one would then ask, whether from a constitutional
policy point of view, the complaint is justified. have no doubt that any reasonable
reader and physician, would regard Applicant?s view of his condition in the context of
human dignity as wholly justifiable. In fact, Dr. S. Fourie, on behalf of the first
mentioned organisation said: ?All those patients who die every year from advanced

prostate cancer have similar and clinical situations as the Applicant."

 

 .

Ackermann supra at .97 says that the Constitutional Court in Carmicheie vs The
Minister of Safety and Security and the Minister of Justice and Constitutional
Development 2001 (4) SA .933 CO at par. 54 clearly categorized the rights that
individuals had under the Bill of Rights as ?subjective rights?. Contextually speaking
therefore there Is no merit in this contention.

This topic is also dealt with in some detail in the Bill of Rights Handbook, Currie
and Johan do Want, Edition, Jets and Co at 250 chapter 10. It becomes clear
that it has been said on a number of occasions that the concept of "human dignity?
has a wide meaning which covers a number of different values. Dignity is a human
worth and an ?inherent? human worth. See Ackarmann supra at p. 97 for'the
valuable discussion on this topic.

See also?Le Roux vs-Day 20H (3) SA 274 (00) at pan 138. Moreover there is a
very close link between human dignity and privacy and as well as a close
relationship with freedom, and Applicant correctly relied on the inter-relationship
between these concepts. Ackarmann supra that view in the

light of the relevant authorities and legal writings and of course he is right.

.22.

I can also refer to Bernstein and Others vs Bester and Others N.N.O. 10.96 (2) SA
751 CO at par. 67 - 63.

Although it Is difficult to capture in precise terms, the concept requires us to
acknowledge the value and worth of all individuals as members of society. it is the
source of a person's innate rights to freedom and to physical integrity, from which a
number of other rights flow, such as the right to bodily integrity. It is my view also

that persons must be regarded as recipients of rights and not objects of statutory

 

mechanisms without any say in the matter. I said this 15 years ago but it is worth - -

repea?ng.
See: Advance Mining Hydraulics (Pty) and Others vs Bares MO. and Others 
2000 (Currie and De Waal say at p. 253 by way of
summary, that: ?human dignity is not?only a-justiciable'and enforceable right that
must be respected and protected, it is also a value that informs the interpretation of
possibly all other fundamental rights and it is further of central sinificance in the
limitations enquiry." As far as active euthanasia is concerned, the authors say at p.

267 that in terms of the current law, a person may not be actively killed, but life-

23

sustaining treatment may be withdrawn even if this would cause the patient to die

from natural causes. I will return to this topic hereunder but I pose the question

whether this is not a good example of do/us eventua/fs? A person acts with

intention, in the form of do/us eventualis, if the commission of the unlawful act or the

causing of the unlawful result may ensue, and he reconciles himself with this

possibility.

See: 5? vs De Bruyn an ?n Ander 1963 (Makgotho 2013 (2) SACR 13 (80A) and vs Maarohanye 2015 1) SA CR 337.

Applicant's Counsel submitted that from a philosophical point of view there was no

difference between assisted suicide by providing the sufferer with a'lethal agent or

by switching off a life supporting device. (see: Clarke vs Hurst N. 0. and Others

1992 (4) SA 630 D), or the injecting of a strong'dose of morphine with the intent to

relieve pain and knowing that the respiratory system will probably close and death

will result. In his replying affidavit Applicant himself said that there is no logical

ethical distinction between the withdrawing of treatment to allow ?the natural process

of death? and physician-assisted death. He also called this distinction ?intellectually

 

24 ..

dishonest?. There is much to be said for this view but best leave it for the
philosophers, and confine myself to the constitutional debate.

The authors also refer to the mentioned Law Commission Paper on Euthanasia and
the Artificial Preservation of Life, and the proposed legislation that the Commission
submitted to the Minister of Health. One of the options was that a medical
practitioner would be allowed to carry out a patient?s request to die. Certain
safeguards were recommended namely that the patients had to be terminally ill,
subject to extreme suffering but mentally competent. A second independent-medical
practitioner would have to confirm the diagnosis and-the findings also had to be.
recorded in writing. The request. must therefore be'based' on an informed and well.
considered decision and the "patient hadto make-this request repeatedly; In this
context the authors say that from a constitutional perspective,- the Law Commission 
proposal does seem to strike a proper balance between the State's duty to protect
life and the person?s right (derived from the rights to physical and 
integrity and to dignity) to end his or her life. ?is also quoting what

O?Reagan had to say in the Makwanyane decision supra about the notion that

 

25 -
the right to life must be a life that is worth living: "the right to life is, in one sense,
antecedent to all other rights in the Constitution. Without life in the sense of
exlstence, it would not be possible to exercise rights or to be the bearer of them. But
the right to life was included in the Constitution not simply to enshrine the right to
existence. It is not life as mere organic matter that the Constitution cherishes, nut
the right to human life: the right to share in the experience of humanity. This concept
of human life is at centre of our constitutional values. The Constitution seeks to
establish a society where the individual'value of each member of the community is
recognised and treasured. The right to life is centraltosuch. a society.i-The-right to .
life, thus understood, incorporates the?right to dignity. So the rights to dignity and to 
life are intertwined. The right to life is more than existence, it is a right to be treated
as a human being with dignity: without dignity,"human life is substantially diminished.
Without life, there cannot be dignity.? I respectfully agree with those views. I may
also add that I agree with the warning that any pious uncoupling of moral concern
from the reality of human and animal suffering has caused tremendous harm to

mankind throughout the centuries.

 

.26

See The More! Landscape, S. Ham's, Bantam Press 2010, a! p. 63.

It was also submitted that the current legal position was of course established in a

pre-constitutional era. In a post-constitutional era, the law requires development to

give effect to the Applicant?s constitutional rights. I agree, and my decision and

reasons are based on that premise.

13.

have also consulted the chapter on euthanasia in its various forms in Foundational

Principles of Medical Lama-Pieter Carstens- and Debbie Pearmain, Lexis Nexis

2007 at p. 200. The authors discuss-various approaches to the topic, and deal with

various authorities from a number of foreign jurisdictions, aswell, and also case law 

of our South African Courts, especially on the topic- of-the-cessation of' medical

treatment. Having also discussed the recommendations of the South African Law

Commission and the present state of the South African law that have already

referred to they say the following at p. 210: ?the present writers finally submit, that

the underlying values, spirit and purport of the applicable sections in the

27.

Constitution, seem to be supportive of the introduction of voluntary active euthanasia
in South Africa. Such a dispensation, along the lines of the recommendation of the
South African Law Commission, should be strictly regulated and monitored to ensure
the autonomy of competent terminally ill patients while guarding against any possible
abuse of the system. Ultimately, they say, euthanasia is a matter of patient
autonomy and individual choice. They also quote from a European writer who was
already in the ier century enlightened enough to have said the following: "Life is
dependent on the will of others, death on I. agree, and the Constitution
supports this view. .
gtLr. -
Dying. as part of living:

Applicant?s Counsel submitted, if one needs-judicial authority for that simple but
signi?cant fact, that in 1990 it was said by the American Supreme Court in Cruzan
vs Directoc, Missouri Department of Health, at a! 497 US 261 (1.990) 343 that,
"dying is part of life, it is completion rather than its opposite. We can, however,

influence the manner in which we come to terms with our mortality". This was

 

28'
referred to by Sachs in Soobramoney vs Minister of Health, war-Zqu Natal
19.98 (1) SA 765 (CC). Applicant's Counsel therefore submitted that it follows that it
is a fundamental human right to be able to die with dignity which our Courts are
obliged in terms of Sections the Constitution, to
advance, respect, protect, promote and fulfil.
I agree with that contention.
I am of course aware that there are divergent views, and very many of them have
been dealt with in the report of the South African Law Commission that have
mentioned. Those-were considered and-l have teada- number of them, though not
all. I am in agreement with the Commission?s View that in a context such as the
present, the new Constitution with .its Bill of Rights should inform me of what to
decide'and which appropriate order to issue. The-norms of the Constitution should
inform the public, and its values, not sectional, moral or religious convictions. I agree
also that sacredness of the quality of life should be accentuated rather than the
sacredness of life per se, contrary to what Counsel for the Respondents and the

amici submitted. It is noticeable, unfortunate and disturbing that from a philosophical

 

29 

point of view and jurisprudentlal point of view (often they overlap, sometimes they
do not), societies in various parts of the world acquiesce in thousands of deaths
caused by-weapons of mass destruction. They seem to even tolerate a horrendous
murder rate in a number of countries, including ours. They seem to tolerate the
yearly slaughter on our roads because despite the statistics, thousands of people
drive like lunatics on our roads every single day. People die of AIDS, from malaria
by the hundreds of thousands, from hunger, from malnutrition and impure water and
insufficient medical facilities..The State says that it cannot afford to fulfil all socio-
economic demands, but it assumes the power to tell an educated individual of sound
mind who is gravely ill and about toI-die, that he must suffer the-indignity of the
severe pain, and is. not allowed to die in a- digni?ed, quiet manner with the
assistance. of-a medical practitioner: The Commission?s report deals with these
examples and asks of course the appropriate questions. The Commission said that a
dying person is still a living person, and one must not forget that and he is entitled
to the rights of a living person. Their draft proposals, in their view, balance the rights

of patients, providers and the State. Another aspect is that of personal autonomy.

30

The irony is, they say, that we are told from childhood to take responsibility for our
lives but when faced with death we are told we may not be responsible for our own
passing. There are many other ironic considerations in this context. One can choose
one's education, one?s career, one can decide to get married, one can live
according to a lifestyle of one?s choice, one can consent to medical treatment or one
can refuse it, one can have children and one can abort children, one can practice
birth control, and one can die on the battle?eld for one's country. But one cannot

decide how to diet-In this context the Commission says, and I agree with it, that

belief or morai doubts of third parties is not the main point in this context at ail. The

choice of a patient such as'the present, is consistent with" an open and democratic
society and its. values and norms as expressed in the Bill of'Rights. There is of
course no duty to person can'waive his right to life. With? reference to the
Soabramanay decision supra they say that the withholding of dialyses of the kidneys
led directly to the Applicant?s death in that case. The irony again is that the State
sanctions death when it is bad for a person, but denies it when it is good. (At least

according to Applicant?s Counsel). In vs Makwanyane supra the following was

 

31

said by the Chief Justice: "Public opinion may have some relevance to the enquiry
but, in itself, it is no substitute for the duty vested in the Courts to interpret the
Constitution and to uphold its provisions without fear or favour. If public opinion were
to be decisive there would be no need for constitutional adjudication.? (at A31 
D) This was said in the context of the constitutionality of the death penalty. 1 have
however nevertheless considered many of the divergent views that the Law
Commission already considered, and the affidavit of DOCTORS FOR 
The point remains: I must comply with the constitutional imperative and make an

order according to it.?

15.

Applicant?s undignified death:

 

Having regard to the details put before me in the affidavits drawn by Applicant and
the submissions made by his Counsel 1 agree that there is no dignity in:
1% 15.1 Having severe pain all over one?s body;

a- 15.2 being dulled with opioid medication;

 

15.3 being unaware of your surroundings and loved ones;
151; being confused and dissociative;

1%55 being unable to care for one?s own hygiene;
15.6 dying in a hospital or hospice away from the familiarity of one?s own home;
15.7 dying, at any moment, in a dissociative state unaware of one?s loved ones
being there to say good bye.
It was also submitted, with reference to the mentioned de?ision of the American
Supreme Court, and in the context of forgoing life sustaining treatment, that ?the
timing of death once solely a matter of fate - is now increasingly becoming a
matter of human choice" (per Brennan? at 783 Counsel submitted that by
allowing a person to choose how he or she wishes to respond to a terminal
prognosis was also to respect, protect, promote, advance and fulfil a person?s
subjective sense of dignity and personal integrity, and thus their constitutional right
to dignity. Applicant said in his Founding Affidavit that he seeks to end his life with
dignity surrounded by loved ones whilst he is able to breathe on his own, speak to

his loved ones, see them, hear them, feel them and be aware of their presence and

 

33

in circumstances where he knows that he ended his life with sovereignty through

active voluntary euthanasia or assisted suicide by a medical professional who will be

able to ensure that he is provided with and assisted in the administration of the

appropriate lethal agent and dose to ensure a dignified end to his life.

16.

Humanity of euthanasia to cease unbearable suffering:

 

Again, for the sake of convenience, I take this heading from the Applicant?s Heads -
of Argument. lt was-submitted, with reference to the humane treatment of animals,
that it has long been recognised as humane to euthanize a severely injured. or
diseased animal. This is provided for in S. 2 (1) of the Animate Protection Act
71 of 1962 read with S. 5 (1) and 8 (7) thereof. it is clear from these provisions -
that the owner of an animal is obliged to destroy such animal which is seriously
injured or diseased or in such a physical condition that to prolong its life would be
cruel and would cause such animal unnecessary suffering. Applicant therefor says

that it is universally accepted that to permit an injured or sick animal to suffer is not

 

34

only merciless and cruel but is also a crime. He asked why could the same dignity
not be accorded to him?
17.

The sole true concern re legalisation of euthanasia:

 

Applicant's Counsel submitted that it has been recognised that, but for the' risk
posed to the weak and vulnerable, active voluntary euthanasia should be legalised.
That was also the view of the South African Law Commission, and it is clear from
the options that it proposed and the discussions surrounding the various options that
this is indeed a major consideration. It is not an issue in the preSent-application. 
agree that there should be minimum. safeguards in any given context, but at the end
of the day each case must be decided on its own merits, and I am sure that any
envisaged legislation will provide for sufficient safeguards to-be applied depending
on the circumstances of each individual sufferer. Any future Court will also determine
the necessary safeguards on its own facts. There is therefore no uncontrolled ?ripple
effect" as it was put to me. Applicant also says that it is in any event not in the best

interests of a patient remain alive where he would suffer unbearably and his or her

35

wishes should be given effect. This was also said by Thirion in Clarke vs Hurst
MO. 1992 (That case concerned the withholding of
further treatment to a patient who had been comatose for a number of years. An
application for the cessation of life sustaining mechanisms was granted by the Court.
With reference to British Chemicals and Biologicals SA (Pty) vs SA Pharmacy
Board 1955(1) SA 134 A, the respected Judge, at 636, said that a Court may in
an appropriate case and despite opposition from the Attorney?General (in this
instance the National Director of Public Prosecution) exercise its discretion in favour-
of'declaring whether the adoption by an applicant of a certain 'cause' of conduct
would constitute a crime. When treatment was withdrawn, the question arose, in the
context of causation, that the uncoupling of a ventilator, which undoubtedly would
Cause death, would not be the legal causeof 'death'where a patient had suffered
severe brain damage and was actually brain dead. By way of analogy, although this
is often odious, I can ask here without deciding, whether Applicant?s death will not
be caused by the cancer rather than the medication which will hasten it with the

sufferer?s consent? The learned Judge (at 660) also stressed, in the context of

 

36-

taking the best interests of a patient into account, that a Court would approach those

interests with a strong predilection in favour of the preservation of life, which did

however not extend as far as requiring that life should be maintained at all costs,

irrespective of quality. The patient in that case, had previously made a so-called

Living Will in which he, in no uncertain terms, stated that he be allowed to die and

not be kept alive by artificial means and heroic measures if there was no reasonable

expectation of his recovery from extreme mental or physical disability. The learned

Judge said that just as a living person had an interest in the disposal of his body, so

a patient's wishes as expressed when he was in good health should be given effect

to. I know of course that the context was differentin that case but, in my view the- -

same reasoning applies to the present. I say this because of the human rights. relied

on that I must give effect to where the'common law does not provide for the given

situation, and in effect, totally negates the rights that every human being is entitled

to.

37

18.
Developments in respect of euthanasia:
Applicant?s Counsel point out that there are at least ll foreign countries or States in
which assisted suicide or active voluntary euthanasia is not unlawful namely Albania,
Belgium, Canada, Columbia, Luxembourg, The Netherlands, Switzerland, and
Oregon, Vermont, Washington, New Mexico and Montana. deem it convenient and
important at this stage to refer to a decision of the Supreme Court of Canada given
on 6 February 2015 in Carter vs Canada (Attorney-General) 2015 3005. The
introductory paragraph to this judgment reads as follows: It is a crime in
Canada to assist another person in ending her own life. As a result, people who are
grievously and irremediably. ill cannot seeka physician?s assistance in dying and
may be condemned to a life of severe and intolerable suffering. A person facing this
prospect has two options: she can take her own life prematurely, often by violent
and dangerous means, or she can suffer until she dies from natural causes. The

choice is cruel.?

 

38

The question in that appeal was whether the criminal prohibition that put a person to

this choice violated her Charter rights to life, liberty and security of the person and to

equal treatment by or under the law. That was the question that asked the Court to

balance competing values of great importance. On the one hand stood the autonomy

and dignity of a competent adult who sought death as a response to a grievous and

irremediable medical condition. On the other stands the sanctity of life and the need

to protect the vulnerable.

The trial Judge found that the prohibition violated the s. 7 rights of competent adults.  .. .-

who are suffering intolerany as a result of grievous and irremediable medical

condition. She concluded that this infringement was not justified under s. 1 of the

Charter. The Supreme Court agreed. The trial Judge had found that the-evidence

before her concluded that the violation of the right to life, liberty and security of a

person granted by s. 7 of the Charter was severe. It also supported the finding that

a properly administered regulatory system is capable of protecting the vulnerable

from abuse or error. The Supreme Court overruled the Provincial Court of Appeal,

 

39

and agreed with the trial Judge, and found that the prohibition on physician?assisted
dying was void insofar as it deprived a competent adult of such assistance where:
1) The person affected clearly consented to the termination of life; and
2) The person had a grievous land irremediable medical condition (including an
illness, disease or disability) that caused enduring suffering that was
intolerable to the individual in the circumstances of his or her condition.
The Canadian Charter of Rights is very similar to the South African Bill of Rights. 1
find the reasoning of the Canadian Supreme Court not only enlightening but very
persuasive. The Court dealt with the situation in many of. the countriesthat I have
already mentioned, and the various arguments both pro and against the assisting of

dying. It found that the total prohibition was overbroad. This of course isalso what 3.-

36, the limitation clause in the Bill of Rights, refers to where it says- that Court, 

when considering the limitations of rights contained in the Bill of Rights, must take

into account, amongst others, less restrictive means to achieve the stated purpose.

(5. 36 (1) If proper safeguards were in place in any given instance, there

would be no need for a total prohibition of assistance. It is clear from the judgment

 

40

of the Supreme Court, and the trial Judge, that great emphasis was placed on the
concept of dignity and autonomy in this particular context. wish to quote from par.
66 of this Judgment: individual?s response to a grievous and irremediable
medical condition is a matter critical to their dignity and autonomy. The law allows
people in this situation to request palliative sedation, refuse artificial nutrition and
hydration, or request the removal of life sustaining medical equipment, but denies
them to request their physicians? assistance in dying. This interferes with their ability

to make decisions concerning their bodily integrity and medical care and thus-?-

_trenches on liberty. And, by leaving people-like Ms Taylor to endure intolerable  

suffering, it impinges on their security of the person.?

It is my opinion that this dictum applies to the present'case as well for the reasons
already stated. I agree therefore with Applicant?s Counsel that it should not be for
the State to say as the Third Respondent did, that it was not a matter of dignity at
all, and that the Applicant had other options at his disposal in the context of well-
managed palliative care. The author of the Opposing Affidavit of the Third

Respondent obviously did not keep in mind that a decision of a person on how to

 

41'
cease to iive was in many instances a decision very important to their own sense of
dignity and personal integrity, and that was consistent with their lifelong values and
that reflected their life's experience. This topic was dealt with by the Canadian
Supreme Court in par. 68 of its judgment. I also agree with the finding of the
Supreme Court, although in the present instance there is no legislation relevant, that
laws that impinge on life, liberty or security of the person must not be arbitrary,

overbroad, or have consequences that are grossly disproportionate to their object.

The trial Judge had found, and the Supreme Court had agreed With her, that  

object of the prohibition was "to protect vulnerable persons from 

commit suicide at a time of weakness. The Prosecutor in that case had asked the

Supreme Court to poSit'that the object- of the 'prohibition'was to preserve life

whatever the circumstances. The same argument was raised by the Respondents

herein. The Court found that this formulation went beyond the ambit of the provision

itself. The direct target of the measure was the narrow goal of preventing vulnerable

persons from being induced to commit suicide at a time of weakness, and that this

could be ensured by necessary safeguards in any given case. The total ban on

 



-42

assisted suicide would clearly not help to achieve the object of the Canadian

Statute, so it was found. It Is of course obvious, and it is so in the present instance,

that many cases would not be connected to the objective of protecting vulnerable

persons at all. The Court also found that total prohibition of assisted suicide had a

severe impact: it Imposed unnecessary suffering on effected individuals, deprived

them of the ability to determine what to do with their bodies and how those bodies

would be treated, and could cause those affected to take their own life sooner than

they would were they able to obtain a physician?s assistance in dying. 

19.-

. The South African Law Commission - Project 86:

 

I have already referred to this report,- part of its reasoning and the recommendations
made. I may just add that the Commission pointed out that the Department of Health
had in principle agreed with the Commission?s proposed legislation legalising
euthanasia. (See the report p. M6 footnote l+86) Third respondent in its Answering

Affidavit did not refer me to this and I do not know whether the other Respondents



are aware of this. By way of summary, and in the context of the Commission?s
report, Applicant?s Counsel submitted that the Commission?s approach and the
community?s Opinion was of limited value only and the ultimate question for
determination was not what the public opined, but rather, what the Constitution
provided. 1 agree with this contention. I do not deem it necessary in this judgment to
deal with the proposed safeguards proposed by the Commission but I have

considered them and I agree that they are valuable and appropriate in most cases,

but certainly not ail. I must saywi?t?gg_ain_5?_digmuthe is the



any other Court Wi" 

before it, and will determine on a case-by? ase basis,-whether- any safeguards




against abuse are sufficient. I do not agree with-the Respondents contention that my
facts-based development of the common law will leave a void which inevitably lead

to abuse.

 

44

20.

Applicant?s safety measures employed:

 

Applicant states that the doctors confirm that he was suffering from terminal cancer.
He confirms that he has more than adequately been informed of his terminal illness,
the prognosis of his condition and the treatments and care that are available to him.
Extensive information was provided to him by all the doctors who have treated him,
he has made his own extensive research into his condition and his request for
assisted dying and has considered all that thoroughly. He was stiil in command of
his faculties and he confirmed that he persisted'in his decision to end his life with
dignity and thus his request as per the Notice of motion. In his view, assisted dying
was the only way that he would bereleased from his eventual unbearable suffering
and for him to prevent the imminent intolerable and" undignified suffering that was to
occur in the future. I regard this as sufficient in the present case. Contrary to what
Counsel for CAUSE FOR JUSTICE required, I do not think it was necessary for the
Applicant to say who the doctor would be, when hevwould die, and what lethal agent

he would acquire. That is private and a facet of his own dignity.

45

21.

Respondents' arguments:

 

I have considered the Opposing affidavits and the Heads of Argument handed to
me. I have read them carefully and where I do not deal with them in this judgment in
this Urgent Court, it must not be understood to mean that have not considered
each proposal and submission. Before I deal with the main points of opposition, if i
can call it that, I need to make some preliminary observations about the affidavits of
the Respondents. The affidavit on-behalf of the First Respondent was made by an
Acting Chief Director: Legal Services. He referred to the Commission Report. Apart
from saying that this Report was handed-to the Minister of Health in 1999, and was
not attended to because other issues of national importance which required
prioritisation such as HIV and the NOS epidemic, he did not say why the Report
was not given legislative attention since then. He said that the conduct of a medical
doctor who provided the assistance sought, would amount to a criminal offence. He
denied that Applicant?s right to dignity was involved in the present context. He also

said that the application ought to be dismissed because if it were granted, it would

 

46

be tantamount to promoting inequalities and discrimination of the poor by way of

limiting access to the Courts to the rich only, which would be in violation of the

constitutional guarantee of the poor to access the Courts. I do not understand this

argument in the present context. It is not relevant, but may be relevant in other

future cases if no objective safeguards are put in place either by a Court in any

particular instance or by way of legislation. For present purposes, this argument is

Irrelevant. I would have preferred the view of the Minister of Justice in the present

application and what he intendeddoing about the proposals contained in the

Commission?s Report or, at the-very-least what the Government's present policy

was in this particular context-I understand however that because of the urgency of

this matter his considered view was probably not-able to be obtained timeously. The

Fourth Respondent, the National Director of Public Prosecution was represented

herein by a Senior State Advocate who said that she was authorised by the Fourth

Respondent to depose to this affidavit. Nothing further of note was said accept that

assisted suicide was a crime. Third Respondent disputed that the Applicant?s

condition constituted a violation of his human right to dignity, or that he was at

present being treated in an inhumane or degrading way. The sad reality was, so it
was put, that the Applicant suffers from a condition which may impact on his dignity,
as it may on numerous persons who die of causes both natural and otherwise. it is
clear that Applicant?s dignity was not infringed, because his view was merely
subjective. In the First Respondent?s Answering Affidavit it was denied that the
manner of death as outlined by the Applicant was not dignified. it was also said that
this was the Applicant?s own subjective view. I was almost shocked when read this
although I am not easily shocked. anymore having regard to my years?
experience in litigation. The undinifiedsuffering that the Applicant was experiencing
was also natural, and thus his constitutlonal right to dignity was not being infringed. I
could not. help wondering. whether the deponent to this affidavit had ever visited a
cancer patient who was in-a terminal stage. In my view the comment is not-justified
on any factual basis. Applicant?s view in this context is that it is undoubtedly
justifiable and considered medically ethical to withdraw life sustaining or life
extending medical treatment to a patient, in order to recognise and give effect to a

terminally ill patient?s dignity. In this context was referred to 1.. B. Grov??s thesis

.48

for the degree of Magister Legum tltled ?Framework for the imp/emenratiorr of

euthanasia in South Africa? prepared under the supervision of Prof. P. A. Carstens

at the Faculty of Law University of Pretoria in 2007 at pages 30 - 31. Applicant

said in this context that there could be no logical or justifiable distinction between:

21.1 The withdrawal of life sustaining or prolonging medical treatment; and

21.2 Active voluntary euthanasia or assisted suicide.

He said that the main intention for the medical practitioner remains to ensure the

patient?s quality of life and. dignity. The secondary result, namely death or the

hastening of death is exactly the same in both instances. I agree that that is so. On

behalf .oprplicant it was therefore submitted that where a doctor withdraws life

sustaining or life prolonging treatment, he or she knows that the result would be a

hastening of the patient?s death, which a doctor could have avoided, yet reconciled

himself or herself with the result and still acted accordingly. Is this not a good

example of do/us eventua/fs? Where life sustaining or life prolonging treatment has

been administered and is subsequently withdrawn, the act of withdrawal is

nonetheless a commission - it remains an active and positive step taken by the

 

49

medical staff directly causing the death of the patient (on a factual basis). It is
accepted that such medical treatment may be refused from the outset by a terminally
ill patient, in which the failure to render treatment would constitute an omission only
on the part of the medical practitioner. It was therefore submitted that there can be
no distinction between active euthanasla and passive euthanasia In the
circumstances where such argument is based on so-called ethical considerations.
Once it is recognised, so it was put, as was indeed conceded at least by implication,
that a medical practitioner has a duty to recognise and ensure that a terminally ill .-
patient?s-dignity is protected by an omissio. or passive euthanasia, then, the same
duty: remains on a medical practitioner through a commissfo or active euthanasia.
From a phllosophical point of view and a jurisprudential point of. view, 1 do believe
that this argument. issound; One must also remember that suicide and attempted
suicide are not criminal offences. The State allows abortion and so does the medical
profession. Birth control measures. are implemented universally. Cessation of
treatment which hastens or causes death happens on a daily basis no doubt.

Academics by and large appear in favour of voluntary active euthanasia or assisted

 



suicide as is clear from chapter 7 of the Grov? thesis. In the context of
conscientious objections, the Applicant said that his rights are sacrosanct to him,
which should not be sacrificed on the altar of religious self-righteousness. He also
submitted that ?conscientious objections" to homo?sexuality, same?sex marriages,
mixed-race marriages and abortion did not detract from enshrined constitutional

rights and it should not do so now.

22.

In the context of the specific relief sought Applicant submitted that until such time as

-. the legislature safeguards," this . Court could grant the relief

claimed with the safeguards employed in. this particular application. It was certainly
not- uncommon for the Comte to rule on matters such as present priOr to
legislation being enacted. This occurred in Canada and in other jurisdictions such as
Netherlands and Belgium, the practice was conducted prior to legislative sanction
and regulation. A Court was also empowered to rule that the legislature should make

the necessary regulations as was the case in Carter before the Canadian Supreme

 

51

Court. i may just add the following in the context of prayer Ll?: s. 3.9 (2) of the

Constitution requires the careful consideration to determine whether the common

law needs to be developed in any particular case. A Court must keep in mind that

the primary responsibility for law reform rests with the legislature. A Court should

develop the common law incrementally only.

See: Mesa/a vs DPP Pretoria and Another 2007 (5) SA 30 00 at par. 37 - .33. it

was said that the judiciary should confine itself to those incremental changes which

are necessary to keep the common law in step with the dynamic and evolving fabric

of our society. A Court however must remain vigilant'and should 'not hesitate to

ensure that the common law is developed to reflect the spirit, purport and objects of

the Rights. Where? the?te'is" such a deviation, Courts are obliged (my

emphasis) to develop'the common law by removing the deviation. This is abundantly

clear from the dicta that appear in the mentioned paragraphs, and I propose doing

so. It must be remembered that S. 39 of the Constitution does not give the Court

discretionary powers. it imposes an obligation on the Court.

 

52-
The topic of the obligation to develop the common law was also discussed in
Carmichele vs Minister of Safety and Security 2007 (4) SA .938 00. (At .953 per:
33 and further). In the context of s. 39 (2) of the Constitution a Court is obliged to
undertake a two stage enquiry which cannot be hermetically separated from one
another. The first stage would be to consider whether the existing common law,
having regard to the s. 39 (2) objectives, requires development in accordance with
these objectives. This enquiry requires a reconsideration of the common law in the
light of s. 39 (2). If this enquiry leads to a positive answer, the second stage
concerns itself with how such development is to take place in order to meet the 
39 (2) objectives.-

23.
have done so and am of the viewthat the absolute prohibition on assisted suicide
in common law does not accord with the rights that the Applicant relies on. First

Respondent?s Counsel?s main argument was that the right to life was paramount



 

and that life was sacrosanct. I agree with this general submission and s. of the


Constitution provides for this. This provision safeguards a person?s right vis-ai-vis

 

-53

the State and society. it cannotmmwean that an individual is 

A further argument was that a Court is in law incompetent to declare that the Fourth
Respondent is prohibited from prosecuting the particular medical practitioner
because of the provisions of s. 179 of the Constitution which grants it the sole
power to decide in any particular case. That is so of course, but it does logically not
follow that when a Court develops the common law, and holds on the facts of a
particular case that a particular act by a person is not unlawful, the prosecuting
authority has been unlawfully deprived of its discretionary power as a result. The
authority given to the Court to develop the common law in a specific case, may have

by necessary implication this consequence, such as In the present instance.

. 25.
The prayers sought by Applicant were addressed by me in Court and Counsel for

Applicant and Third Respondent also provided me with a suggested amendment,

 

 

54

were I to grant an order. reflected upon this, and amended it to ensure that the
relief was case dependant and certainly not a precedent for a general uncontrolled

?free for all' as it was suggested.

26.

Accordingly, on 30 April 2015, I made the following order:

1. IT IS DECLARED THAT:

1.1 The Applicant ls a mentally competent adult;

1.2 The Applicant has freely and voluntarily, and without undue. influence
requested the Court to authorize that he be assisted in an act of
suicide;

1.3 The Applicant is terminally ill and suffering intractany and has a
severely curtailed life expectancy of some weeks only;

1.1+ The Applicant is entitled to be assisted by a qualified medical doctor,

who is willing to do so, to end his life, either by administration of a

 

55-

lethal agent or by providing the Applicant with the necessary lethal
agent to administer himself;

1.5 No medical doctor is obliged to accede to the request of the
Applicant;

1.6 The medical doctor who accedes to the request of the Applicant shall
not be acting unlawfully, and hence, shall not be subject to
prosecution by the Fourth Respondent or subject to disciplinary
proceedings by the Third Respondent for assisting the Applicant.

<9 This order shall not be read as endorsing the proposals of the draft Bill on - -- -

End of Life as contained in the Law Commission Report of November 1998

(Project 86) as laying down the necessary or only conditions for the

entitlement to the assistance of a qualified medical doctor to commit-suicide.

3. The common law crimes of murder or culpable homicide in the context of
assisted suicide by medical practitioners, insofar as they provide for an
absolute prohibition, unjustifiably limit the Applicant?s constitutional rights to

human dignity, (S. 10) and freedom to bodily and integrity (8.

 

56

12 (2) read with S. and 7), and to that extent are declared to be
overbroad and in conflict with the said provisions of the Bill of Rights.

. Except as stipulated above, the common law crimes of murder and culpable
homicide in the context of assisted suicide by medical practitloners are not

affected.

Ilium

\l
JUDGE H.J FABRICIUS

JUDGE OF THE GAUTENG HIGH COURT, PRETORIA DIVISION

57

Case no.: 27hOl/15

Counsel for the Applicant: Adv H. B. Marals SC
Adv H. van Niewenhuizen
Adv C. du Plessls

Instructed by: Nkosi Rogers Attorneys Conveyancers

Counsel for the 15?, and Respondents: Adv L. Moloisane SC

Instructed by: State Attorney

Counsel for the Respondent: Adv H. van Bergen

Instructed by: Moduka Attorneys

Counsel for DOCTORS FOR LIFE: Adv R. Willis
Adv A. D?Oliveira

Instructed by: Robin Twaddle Attorneys

Counsel for CAUSE FOR JUSTICE: Adv M. J. Engelbrecht

Instructed by: Smit 8: Viljoen Attorneys

 

58

Heard on: 29/0h/2015
Order granted on: 30/0h/ 2015

Reasons given on: at ?4-:00