A discussion of Stransham-Ford v Minister of Justice and Correctional Services and Others 2015 (4) SA 50 (GP)
The right to life is one of the most important and well-protected rights in the new democratic South Africa and yet it is one of the most controversial rights. With the controversy raised several questions such as:
- When does life start?
- When does life end?
- Who has the right to take life and on what grounds?
The Constitution: Section 11 – “Everyone has the right to life”
In S v Makwanyane the court mentioned that: “The value of life is immeasurable for any human being, and with the possible exception of human dignity, there can be no more basic value constitutionally protected than that of life itself. In the absence of the right to life, no other right may be meaningfully held.”
- No definition of “murder/homicide” in terms of the Criminal Procedure Act – need to consider the common law elements
- Murder has been defined as the intentional, unlawful killing of another human being
- Elements of murder (Snyman):
- Fault (intention or negligence)
Suicide and euthanasia (assisted suicide)
- Euthanasia is the act of deliberately ending a person’s life to relieve him or her from suffering or an act of deliberately assisting or encouraging another person to kill him or herself.
- Classification of euthanasia: Active and passive euthanasia.
- Subdivided into voluntary and non-voluntary euthanasia.
- A testamentary writing which addresses the testator’s or testatrix’s concerns to be kept alive by artificial means.
- Requirements are set out in Section 2 of the Wills Act, which relates to the Amicus testendi.
Congenital disability and abortion
- This is a claim that a child has against a medical practitioner who misdiagnosed a congenital disability or some serious medical condition prenatally, resulting in the child being born with a disability, or who could have prevented pregnancy.
- “Monsters” in terms of common law.
- In H v Fetal Assessment Centre 2014, the Constitutional Court held that the mother of the child has a right to an informed decision to terminate the pregnancy the moment the disabilities are identified.
- Choice on termination in terms of the Pregnancy Act of 1996, Section 27 (reproductive healthcare).
- Applicant was an advocate of the High Court.
- Applicant had terminal stage 4 cancer and had only a few weeks to live.
- An urgent application was made to seek a court order wherein the court must order that:
- A registered medical practitioner must end his life through the administration of a lethal agent.
- Indemnifying the medical practitioner from criminal liability.
- Development of common law to make prayers 1 & 2 constitutional.
- The court found, among others, that the applicant was a competent adult.
- The applicant had freely, voluntarily and without undue influence decided to take his own life.
- The applicant was supposed to be assisted by a qualified medical doctor and the doctor was to be indemnified from criminal liability.
- The common law crimes of murder or culpable homicide in the context of assisted suicide by a medical practitioner, insofar as they provide an absolute prohibition, unjustifiably limit the applicant’s constitutional rights to human dignity and freedom to bodily and psychological integrity.
Even though the right to life is constitutionally protected, the law only protects it when such right is taken by a third party but when the individual decides to take his/her own life either with or without assistance this decision should be made with full knowledge and if a third party participate he/she must be indemnified from criminal liability before the act.
Co-authored by Kelvin Simango
Note: The contents above have been used as an internal discussion on the matter of assisted suicide and should by no means be seen as a definitive discussion and/or complete legal advice on the issue