On 6 December 2016 the Supreme Court of Appeal (SCA) unanimously overturned the judgment of the Pretoria High Court given in May 2015. Judge Hans Fabricius in May last year opened the door to legalised euthanasia and physician assistance in the commission of suicide.

On Tuesday, however, the SCA by the mouth of Justice Wallis JA (and all four of the other judges who heard the matter concurring with him) declared the judgment of Fabricius J to be incorrect on the merits of the case. Euthanasia and physician-assisted suicide accordingly are unlawful acts to which South African law attaches criminal liability.

In this blog, we look back at Cause for Justice’s involvement in this historic legal battle.

The journey                                   

The court a quo                                                                              

In 2015, Cause for Justice (CFJ) was admitted as a friend of the court (amicus curiae) in an application by Adv. Stransham-Ford, in which he requested the High Court in Pretoria to sanction his euthanasia and/or assisted suicide. On 29 April 2015 CFJ argued alongside several other parties, on an urgent basis without proper opportunity to prepare, against the legalising of euthanasia. On Thursday, 30 April 2015, hours after Mr Stransham-Ford had passed away peacefully of natural causes, Judge Fabricius (who at the time did not know that Mr Stransham-Ford had already passed away) made a ruling that the Applicant’s life may legally be ended by means of euthanasia or physician-assisted suicide.

Appeal to the SCA

The matter was taken on appeal by the State and the Health Professions Council of South Africa. Unperturbed by the initial loss, CFJ again applied and was given permission by the SCA to assist the court in interpreting and applying the Bill of Rights to this complex issue of considerable public importance. Such was the nature of the court’s appreciation of CFJ’s written submissions, that CFJ was allowed to make oral submissions at the hearing of the appeal on 4 November 2016 in Bloemfontein.

The SCA judgment – CFJ’s contribution

On 6 December 2016, the SCA found that Judge Fabricius was wrong in his judgment made in 2015 and that euthanasia, including instances where the physician assists the patient in ending his life, remains illegal. To view the three main reasons for the court’s finding, read our Media briefing here, or follow this link to the full judgment.

In its judgment the SCA noted –

• that CFJ espouse a right to life and are opposed to euthanasia, whether voluntary or involuntary, and physician-assisted suicide;
• how CFJ learned of the case through social media posts of the pro-euthanasia group, DignitySA;
• how CFJ took the initiative to become part of the case (in order to protect the value of human life), in the face of and in spite of opposition from the legal representative of the Applicant;
• that CFJ was permitted to present oral argument as the court had found our written submissions of assistance (our written submissions may be viewed here);
• that CFJ applied to lead additional evidence (on the troubling experience of euthanasia in Belgium, which may be viewed here).

The SCA judgment – Importance and implications

The fundamental value of human life

Section 11 of the Constitution guarantees everyone the right to life. The right to life and the value of life are fundamental to our Constitutional order and the right to life cannot be limited by any other right.

The SCA made some important statements regarding the value of life, of which the impact on the right to life is one. We quote a few of these statements here below as they are particularly forceful and well-articulated:

“[63] A starting point is the right to life, which is guaranteed in a number of bills of rights, including our own. In Pretty[1] the House of Lords held that the right to life was the antithesis of a right to determine the manner and timing of one’s death.[2] The European Court of Human Rights, in the appeal from that decision, accepted this.[3] In the view of these two courts therefore there is no right to die, or right to either PAS or PAE arising from a constitutionally protected right to life. …”

“[99]   … Ms Mayeza … a palliative care social worker employed at Chris Hani Baragwanath Academic Hospital, Soweto … drew attention to the fact that, among the communities that she serves, the life of aged and infirm members is valued and they are usually cared for within the family and the broader community. The attitude towards life is communitarian and it is treated as a gift to be preserved. Suicide is alien to this culture. She suggested that in these communities permitting PAE and PAS posed a real threat given their socio-economic circumstances.”

“[100]    A court addressing these issues needs to be aware of differing cultural values and attitudes within our diverse population. It needs to consider the impact of its decision beyond our affluent suburbs into our crowded townships, our informal settlements and in the vast rural areas that make up South Africa. It is in that context that it must determine whether its decision will further undercut the foundational value of the right to life or be supportive of it. The notion of a dignified death must be informed by a rounded view of society, not confined to a restricted section of it. This was not done in this case and could not have been done because of the inadequacies of the evidence and the haste with which it was decided.”

Conclusion

CFJ welcomes the judgment of the SCA and the court’s acknowledgement and protection of the pre-eminent value of human life, as entrenched in our Constitution.

Thank you to everyone who has supported us in fighting this Cause!!!

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The SCA judgment – Further reading

The High court’s failure to critically assess the state of our law

“[72]   … it was only on the question of overbreadth that the Supreme Court of Canada held in Carter that the criminalisation of aiding and abetting suicide unjustifiably infringed a protected right. Whether a South African court faced with the same issue would arrive at the same conclusion would need to be determined in the light of the very different circumstances in this country; the availability of medical care and especially palliative care; the wide diversity of our society in its cultures and belief systems; our sense of the need to protect the poor, the weak and the vulnerable and the value attached to providing such protection. The high court’s too ready adoption of the reasoning in Carter ignored the very different context in which that case was decided.”

“[74]   None of these issues were fully canvassed in the high court. Nor could they be, given the circumstances in which the litigation was conducted. They all point away from the court engaging in a significant and substantial development of the law when there was no longer a justiciable issue before it. I may add that, even had Mr Stransham-Ford survived, the fact that the issues had not been adequately canvassed should have given the judge pause for thought. While litigation is sometimes urgent it should not become a race against time to defeat the grim reaper of death. When a court is dealing with litigation brought to test the existing law against constitutional norms and values, it is vitally important that the court has the advantage of a full exposition of the facts and the law so that an appropriately considered judgment may result.[4] A balance must always be struck between the desire for haste of the litigant and the requirement resting on all judges that they do justice in accordance with the law of South Africa and the Constitution. In this case I am satisfied that the result of the judge’s desire to deal urgently with the matter was that insufficient opportunity was available for a fair public hearing and determination of the issues in the case.”

Mr Stransham-Ford’s illness and passing – The real facts

“[85]   On 18 April Mr Stransham-Ford was delirious and by 20 April he was sleeping much of the time. The events of that day are important. He was trying to say something to Dr Bruce that the latter could not entirely understand. His former wife told Dr Bruce that he was asking whether he needed to go through with assisted death or whether he could change his mind. Dr Bruce’s note reads:

‘Chatted with Rob today – he is asking about whether he can change his mind about assisted death. He was reassured that he always has the option to change his mind. He is also having nightmares relating to death. He is more anxious than before – worried about death and whether he will be obliged to see his quest through.’ “

“[88] According to Dr Bruce’s notes, Mr Stransham-Ford’s death was not the undignified and frightening experience he had anticipated. It is described in these terms in the supplementary report of Dr Cameron: ‘Dr Bruce commented that, together with the assistance of community nurses from St Luke’s Hospice, he had been able to provide palliative care to RSF in the setting of his ex-wife’s home. This had enabled those who had been separated in the past to be brought together in a very meaningful way. His symptoms were managed effectively enough for him to be able to die in a homely atmosphere surrounded by family and friends who cared for him. The impact of palliative care surpassed his expectations and defied his own predictions of a frightening, impersonal and undignified death.’

“[89]   This evidence revealed that the picture of Mr Stransham-Ford’s final illness as depicted in the affidavits bore little resemblance to reality. More particularly it casts grave doubts on his desire to embark upon PAE or PAS. That throws into high relief the absence of any indication in his affidavits that he had been in contact with any medical practitioner who was willing to assist him in taking either of those steps. A feature of the cases in this area is that there is evidence that a medical practitioner is available and willing to assist the patient but is only willing to do so if they will not face criminal proceedings and possible sanctions if they do so. That is absent from this case. So there is neither a patient nor a doctor before the court seeking relief. Indeed precisely who is before the court at this stage is something of a mystery. The estate has no legal interest in the matter and as the affidavits in all the motions to secure access to evidence and to be admitted as amici were deposed to by Ms Buitendag, the attorney who has been handling the matter at all times, we cannot penetrate behind the ostensible litigant to identify the real party pursuing the case.”

South Africa’s social context all-important

“[98]   … South Africa is a very different country facing very different challenges from countries such as Canada, Switzerland, the Netherlands, Belgium and Luxembourg, and states such as Oregon, Washington, California, Vermont and Colorado in the United States. Those countries and states have sophisticated health care systems and extensive palliative care networks. Comparatively speaking they are wealthy. South Africa is not. Our health care system faces significant challenges dealing with everyday cases. Voluntary organisations and private medical practitioners largely provide palliative care. It is not widely available to the majority of people. Regulatory enforcement in many fields is under pressure or completely lacking. Our population is diverse and there are substantial disparities of wealth and resources. Before a court could be satisfied that the acknowledged risks attendant upon permitting PAE or PAS could be guarded against by way of regulation, as is the case in other countries, it would need to be satisfied that a proper regulatory framework was, or could be put, in place and that the framework would not be a pious hope designed in a bureaucrat or idealist’s office, but one the functional operations of which had been tested and not found wanting.”

[1] Pretty v Director of Public Prosecutions and Secretary of State for the Home Department [2001] UKHL 61; [2002] 1 All ER 1 (HL) (Pretty-HL).

[2] Paras 3-9 per Lord Bingham of Cornhill.

[3] Pretty v United Kingdom [2002] 35 EHRR 1 (Pretty-EC) paras 37-42.

[4] Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC) para 8; Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA); Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd [2011] ZACC 30; 2012 (1) SA 256 (CC) paras 51 and 52; Government of the Republic of Zimbabwe v Fick and Others [2013] ZACC 22; 2013 (5) SA 325 (CC) para 104.