In 2019, the Western Cape high court found Prof Sean Davison guilty of assisting three men to die. They begged him repeatedly to relieve them of their suffering.

But he only received a suspended prison sentence of eight years. Effectively, his punishment was three years’ house arrest with community service. This is far lighter than the 14 years minimum imprisonment he faced. It was the outcome of his admission in his plea bargain that he was guilty of murder as charged.

Hence Davison is a convicted murderer, a criminal, with a criminal record.

In 2022, however, immediately after his house arrest had been lifted, Davison declared, on the steps of that very high court, that he had not committed any crime and was not a murderer.

So, how can Davison now deny the guilt he admitted in court? Where is his integrity?

The explanation for both Davison’s apparent double-speak and his relatively light sentence is to be found in an untenable contradiction in our law regarding assisted dying. In the Stransham-Ford appeal case (2016), a full bench of five justices of the Supreme Court of Appeal (SCA) called it a “deficiency” in our law that calls for a “remedy”.

Davison had no other choice but to plead guilty to three charges of murder because assisted dying, in both its forms, constitutes a common-law crime. To kill someone upon request, for example, with a lethal injection — voluntary euthanasia or mercy killing — is murder. To supply someone with the means which that person then freely self-administers to commit suicide — assisted suicide — is likewise murder, provided the supply and self-administration of the means are closely causally connected.

In respect of guilt, it is of no concern for our common law that the person was mentally competent to decide to end their life; nor that the person made that choice autonomously or freely; nor that the person’s suffering was intractable and unbearable; nor that the suffering stripped them of dignity. To assist — by means of voluntary euthanasia or assisting with suicide — is a crime, namely murder, even though neither suicide nor attempted suicide is a crime.

Why then the light sentence, not only Davison’s, but also in the Hartmann case? In 1975, Dr Alby Hartmann, a general practitioner in Ceres, was found guilty of murder because he had ended the extreme suffering of his father — an octogenarian dying of advanced cancer — by euthanising him. Judge Louis van Winsen had no other choice but to find Hartmann guilty of murder.

However, Justice Van Winsen did something remarkable: he sentenced Hartmann “until the rising of the court”, which meant that Hartmann’s imprisonment ended when the judge left the courtroom.

Similarities between the Hartmann and Davison cases are obvious. Both were found guilty of the common-law crime of murder. And in both instances, imprisonment was regarded as inappropriate. Why?

It is reasonable to infer from these sentences that assisting a terminally ill and severely suffering person is morally speaking significantly different from murder with evil intent. There is no malice. On the contrary. Thus our law is a blunt instrument that treats radically dissimilar kinds of actions similarly, at least in respect of finding someone guilty, if not sentencing.

The Hartmann case (1975) was 21 years before the 1996 Constitution, but we have reason to believe that Justice Van Winsen anticipated some of the moral considerations incorporated in the Bill of Rights of our Constitution. And in the Davison case (2019), 23 years after 1996, Judge-President John Hlophe could have had in mind our constitutional rights — as opposed to only our common law — that inform the legal status of assistance with dying.

The following constitutional rights underpin our right to choose assisted dying autonomously:

• The right to respect for and protection of human dignity (Article 10), which is intertwined with the right to life (life with a certain physical and mental quality, not merely biological life), according to Constitutional Court Justice Kate O’Regan;
• The right to freedom and security of the person, including the right not to be treated or punished in a cruel, inhuman or degrading way (Article 12(1)); and
• The right to bodily and psychological integrity, including the right to security in and control over one’s body (Article 12(2).

It is evident that these rights support a right to assisted dying. And as such they clash with our common law that regards assistance with dying as murder.

Thus there is an untenable contradiction between common law and constitutional rights. Grievous human suffering and loss of control over the body — constituting disregard for autonomy, inhumane treatment and disrespect for dignity — impel us to remove this legal tension.

In 2016, the SCA indicated that should a future case be brought before a court in a manner that allows for all arguments to be heard as well as time for reflection (in other words, not an urgent application), “the common law will no doubt evolve”, doing away with its tension with the Constitution.

The SCA foresees that we would in all likelihood follow the route mapped out by the Canadian Supreme Court in the Carter case (2015), where the court instructed the Canadian Parliament to pass legislation decriminalising assisted dying. Similarly, according to the SCA, our courts would then instruct our Parliament “to remedy the deficiency” by means of appropriate legislation. In fact, the SCA sees this as an “extremely important possibility”, accompanied by a public hearing, as was the case with termination of pregnancy legislation.

The SCA even mentions possible avenues for the development of our common law that could lead to decriminalising or legalising assisted dying:

• A different perspective on an element of the crime of murder (causation, intention or unlawfulness);
• Necessity as a defence;
• Consent as a defence; or
• A special defence for medical practitioners or carers.

The SCA emphasised that it is the task of Parliament to make laws, not that of the courts.

But since 1998, Parliament has flatly ignored the report — to which was appended draft legislation — of the (then) South African Law Commission (Salc), tasked by president Nelson Mandela to investigate all end-of-life medical choices, including assisted dying.

With good reason, Prof Davison blames politicians for the unbearable suffering with which some people die. The constitutional law expert, Prof Pieter Carstens, calls Parliament’s indifference to human suffering “hypocrisy and lack of courage to act by our legislators and government”.

One should add that medical practitioners are too silent about how some people die, even with the best possible palliative care.

Likewise, it could be argued that the SCA, in the Stransham-Ford appeal case, could have been more activist in respect of what is, after all, a constitutional vacuum that the court itself recognised.

The right to assisted dying is in more than one sense “the last right” that begs for recognition. Our Constitution paved the way for the recognition of socioeconomic and labour rights, the right to termination of pregnancy, the right to same-sex marriages, and the right not to be punished by death, even though we have good reason to believe that the majority of the population — for personal or religious reasons — is arguably not supportive of at least some of these rights.

But this is not really the issue. In the final instance, what counts in terms of public policy is the correct interpretation of the Constitution, as Chief Justice Arthur Chaskalson put it.

Consequently, Davison is arguably innocent of murder in the eyes of the Constitution. But our Parliament — that dysfunctional institution that allowed South Africa to be sold to criminals — failed to develop our common law in this regard. Dying people, unlike women or gays, do not constitute a political power block or pressure group and can therefore be ignored at negligible political cost.

A court application is currently winding its way through our legal system, beginning with the South Gauteng high court. Diethelm Harck is applying to be legally assisted with dying should his motor-neuron disease progress to a stage where he might need and request such assistance. But he also wishes others’ right to assistance to be constitutionally recognised.

Harck is opposed by the Minister of Health, the Minister of Justice and Correctional Services, the Health Professions Council of South Africa (HPCSA) and the National Prosecuting Authority (NPA). And in the background, they are supported by Doctors for Life and hospice and palliative care advocates. And Harck’s opponents are carried by the state’s considerable taxpayer-generated resources.

We do not know how well Harck’s legal case will be presented and argued in court, how good his expert witnesses will be, how well the court will be informed about debates in other jurisdictions, who the judges will be in possible successive appeals to the SCA and Constitutional Court (CC), how possible appeals might be funded, or whether Harck will survive a protracted legal process (unlike Robin Stransham-Ford).

So, the recognition of a constitutional right hangs by the thin thread of a single applicant who is approaching the court on his own initiative, in part at his own expense, and assisted by a pro Deo legal team.

Judging by reactions on social media to Davison’s release from house arrest, there is significant public support for assisted dying. This may provide some social context for the attempt to decriminalise assisted dying, but all that will count, in the final analysis, is the interpretation of the Constitution by the judges on the bench.

And should the courts then do what they ought to do, the fate of people dying with intractable and unbearable suffering, with all its implications for autonomy and dignity, will be passed on into the hands of our Parliament.

At issue for our courts and Parliament is, in the first instance, not the ethics of assisted dying, but the ethical imperative to decriminalise assisted dying consistent with our Constitution’s Bill of Rights, the ethical foundation of our democracy. DM

This article was first published in Vrye Weekblad.