Written by: Whitney Setswe
In South African law as it currently stands it is the general principle that any person who assists another person to end his or her life in any manner can successfully be charged, prosecuted and found guilty of murder.
In the case of Stransham-Ford v Minister of Justice and Correctional Services and Others (27401/15) [2015] ZAGPPHC 230 (4 May 2015) an urgent application was lodged by Mr Stransham-Ford who is the applicant in the matter. The applicant alleged that his fundamental rights, as provided for and constituted, were being infringed by the fact that the law did not allow for his life to be ended, even though he was terminally ill and suffering more everyday by being alive. He requested the Court to exempt the person who assists him in ending his life from being prosecuted criminally.
On 30 April 2015 Judge H.J Fabricius made the following judgement, declaring that the Applicant is a mentally competent adult; has freely and voluntarily, and without undue influence requested the Court to authorize that he be assisted in an act of suicide; confirmed that he is terminally ill and suffering intractably and has a severely curtailed life expectancy of some weeks only; is entitled to be assisted by a qualified medical doctor, who is willing to do so, to end his life, either by administration of a lethal agent or by providing the Applicant with the necessary lethal agent to administer himself; that no medical doctor is obliged to accede to the request of the Applicant; and that the medical doctor who accedes to the request of the Applicant shall not be acting unlawfully, and hence, shall not be subject to prosecution by the Fourth Respondent who is the National Director of Prosecution or be subject to disciplinary proceedings by the Third Respondent who is the Health Professional Council of South Africa for assisting the Applicant; the common law crimes of murder or culpable homicide in the context of assisted suicide by medical practitioners, insofar as they provide for an absolute prohibition, unjustifiably limit the Applicant’s constitutional rights to human dignity, (section 10 of the Bill of Rights) and freedom to bodily and psychological integrity (section 12 (2) (b) of the Bill of Rights, read with section 1 and 7 of the Bill of Rights), and to that extent are declared to be overbroad and in conflict with the said provisions of the Bill of Rights.
Unfortunately the applicant died before this judgment was delivered.
This decision is only the beginning of the road to changing the law and how it applies to assisted suicide, and providing people who are terminally ill with the decision on whether or not to end their life instead of having to live a painful life that will end in them dying anyway.
The right to live and to die should be a choice.
August 19, 2024
