Death is steeped in human fear and superstition. Jurisprudentially, death has been treated in various ways, the most obvious of which is the criminal sanctions applicable to murder and culpable homicide.

However, the law also endeavoured to control a person taking his or her own life and in certain jurisdictions suicide was considered a crime — and in certain jurisdictions suicide is still considered to be a crime. However, the decision to take one’s life in circumstances absent the motivations that may accompany suicide and in circumstances where one may be ill and suffering, is an area of the law that is contentious and continuously debated.

Euthanasia, as it is known, remains in the fog of debate in South African legal circles and has been debated both before and since the constitutional dispensation arrived along with democracy in South Africa at the turn of this century.

The debate was recently revived by a decision in the North Gauteng High Court and a subsequent decision, on appeal, by the Supreme Court of Appeal as between Robert James Stransham-Ford and various applicants including the Minister of Justice and Correctional Services, the Minister of Health, the Health Professions Council of South Africa and the National Director of Public Prosecutions.

The applicant in this matter, suffering from advanced cancer, sought an order declaring, primarily, that the medical practitioner who was to assist the applicant with a lethal agent in order for the applicant to take his life, would not be held accountable and would be free from any civil, criminal or disciplinary liability that may otherwise have arisen from the act concerned. The applicant achieved success in the initial application, but was unsuccessful on appeal.

However, the matter does not introduce formally into South African law the lawfulness of euthanasia as a general principle. The decision may provide useful precedent to another ailing individual who is incensed by the indignity of a suffering death, but euthanasia remains an illegal procedure.

Notwithstanding careful constitutional scrutiny of the applicant’s case before the High Court, both in terms of the applicant’s personal and particular health circumstances, the one conclusion to which the court comes and which may be of use to the supporters of euthanasia, is the need for a legal shift in order to deal more formally with the concept of euthanasia in South African law, more particularly, euthanasia’s relationship to the Bill of Rights.

According to the Supreme Court of Appeal, in its decision, the obligation to deal with the lawfulness of euthanasia is one to be discharged by Parliament and not the courts.

Therefore, and quite startling from the judgment of the High Court, is the clear line one is able to draw between euthanasia and the Bill of Rights in South African law. In fact, there does not appear much debate about that relationship in South African law:

“ ‘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 central to such a society. 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.” (paragraph 12, at page 16)

Therefore, the primary issue that emerges from the Stransham-Ford judgments is the lack of legal architecture to deal with euthanasia, albeit that the right to die is already constitutionally supported by the rights to life and dignity.

But the glaring lacuna in South African law remains.

Therefore the question that the Stransham-Ford judgments leaves us with is not whether the Bill of Rights endorses euthanasia or the right to die, but rather what we, as a society, must now consider as appropriate — both in circumstance and procedure — in order to support such a right statutorily and constitutionally. When is the right to die a right — only in circumstances where the bearer is terminally ill or may it be exercised by a healthy individual?

The debate in South Africa is complex, but it must be carefully moderated, like euthanasia, at least for purposes of South African law, is not about death and the right to die, but rather the process of achieving that goal in the secure belief that one is exercising a constitutional right. DM

Neil Kirby is Director and head of Healthcare and Life Health Sciences Law at Werksmans Incorporated.