On 30 April 2015, Judge Fabricius handed down judgment in the North Gauteng Division of the High Court in the matter of Stansham-Ford v the Minister of Justice and Correctional Service & Others, in terms of which the Court found that the medical professional that will assist Stansham-Ford’s in committing suicide will, contrary to the common law position, not be acting unlawfully.

This is a ground breaking judgment from an international perspective and has changed both our criminal law and medical law. Prior to this judgment, the common law crimes of murder and culpable homicide placed an absolute prohibition on medical professionals assisting a terminally ill patient to commit suicide. Stransham-Ford, in our view, correctly argued that this absolute prohibition is inconsistent with the Constitution of the Republic of South Africa as it infringes on Stransham-Ford’s right to human dignity, which includes the right to die in a dignified manner. Judge Fabricius acknowledged as a categorical imperative the courts’ duty to recognise and protect the right to human dignity, by developing the common law, to bring it in line with these constitutional imperatives.

Judge Fabricius referred in his judgment to the judgment in the Supreme Court of Appeal in Canada, where the Court argued that in terms of the Canadian common law (which also prohibited euthanasia), a terminally ill patient had two choices, namely, the patient could attempt to commit suicide, which is both violent and dangerous, or the patient could endure intolerable suffering until he / she dies from natural causes. The Canadian court described this as cruel, and in the circumstances, allowed a terminally ill patient to be euthanized.

Judge Fabricius also convincingly referred in his judgment to Stransham-Ford’s request to the Court to afford him the same dignity which our law affords animals by prohibiting the merciless and cruel suffering of animals and obligating an owner of an animal “to destroy such animal which is seriously injured or diseased or in such a physical condition that to prolong its life would be cruel”.

An important aspect of Judge Fabricius’ reasoning was his acknowledgment of the fact that dying is a part of life and that death is the completion of life rather than its opposite. In light of this, Judge Fabricius accepted the argument by Stransham-Ford that part of the right to human right is the right to be able to die with dignity.

The High Court has, therefore, developed the common law crimes of murder and culpable homicide, to the extent that our law previously placed an absolute prohibition on physician assisted suicide. In other words, depending on the facts of each case and after having implemented appropriate safeguards to avoid abuse (i.e. in order to strike a balance between the State’s duty to protect life and an individual’s right to die in a dignified manner), physician assisted suicide may be lawful. Judge Fabricius did, however, stress the importance of legislative intervention, as the main vehicle of law reform in our society, to regulate physician assisted suicide in South Africa.

We agree that legislative intervention is necessary to ensure that all physician assisted suicides in South Africa are conducted correctly, safely and lawfully.

Written by Anton van Loggerenberg
Associate, Bowman Gilfillan Africa Group