AN INSIGHT INTO THE STANCE AND PROGRESSION OF ACTIVE

EUTHANASIA IN SOUTH AFRICA

By

Submitted in partial fulfilment of the requirements for the degree

LLB

In the

SCHOOL OF LAW

UNIVERSITY OF SOUTH AFRICA

SUPERVISOR :

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CONTENTS

CONTENTS…………………………………………………………………………...2

ACADEMIC HONESTY DECLARATION………………………………………….3

CHAPTER 1: INTRODUCTION………………………… …………………………4

CHAPTER 2: RESEARCH METHODOLOGY……………………………………5

CHAPTER 3: CONCEPTUALISATION OF CENTRAL RESEARCH THEMES……6

CHAPTER 4: PROBLEM STATEMENT HYPOTHESIS………………………..7

CHAPTER 5 HYPOTHESIS……………………………………………………….8

5.1 The Draft Bill on End of Life Decisions……………………..

5.2 Constitutional Rights within the Active Euthanasia Debate

5.2.1 Right To Life…………………………………………9

5.2.2 Right To Dignity……………………………………..9

5.2.3 Right To Autonomy………………………………….9

CHAPTER 6: PROPOSED CHAPTER OUTLAY………………………………11

CHAPTER 7: TIME FRAME………………………………………………………12

CHAPTER 8: POINTS OF DEPARTURE AND ASSUMPTIONS……………13

8.1 The Slippery Slope………………………………………….14

CHAPTER 9: CONCLUSION……………………………………………………...15

BIBLIOGRAPHY…………………………………………………………………….16

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3
 CHAPTER ONE

INTRODUCTION

Euthanasia is defined as conduct that brings about an easy and painless death for
persons suffering from an incurable or painful disease or condition. 1 Active
euthanasia is therefore an act of ending a terminally ill patient’s life on his request
by a medical practitioner. In 1998, the South African Law Commission2 submitted a
report on euthanasia and the artificial preservation of life which contained a
provision for a Draft Bill named the End of Life Decisions Act3. This bill was created
to address the uncertainty on euthanasia following the challenges faced in the
medical profession as well as private citizens who had taken decisions based on the
principle of euthanasia. However the End of Life Decisions Act was never enacted
and to date South Africa does not have legislation regarding euthanasia. For
purposes of this research product one will look into the historical development of the
law pertaining to active euthanasia and the legal status quo in South Africa. This will
be done by having a thorough look into relevant legislation, case law and law reform
commission reports. There has been an ongoing debate pertaining to the law on
active euthanasia as well as cases that have ruled on active euthanasia. It was
stated in Minister of Justice v Estate Stransham Ford4 that insofar as the crime of
murder is concerned, consent is not a defence available to the person who brings
about the death of the deceased.

1
McQuoid-Mason DJ. Emergency medical treatment and 'do not resuscitate' orders: When can they be
used? S Afr Med J 2013;103(4):223-225
2
I Mahomed Commission of inquiry into Euthanasia and the Artificial Preservation of Life in South Africa:
Project 86 (1998)
3
End of Life Decisions Act, 1998
4
Minister of Justice v Estate Stransham Ford 2017 (3) (SA) 152 (SCA)

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 CHAPTER 2

RESEARCH METHODOLOGY

In order to effectively formulate an informative research paper which establishes the

historical development and status quo of active euthanasia in South Africa, this
research will adopt a qualitative and desktop approach. One will make use of
resources in the form of textbooks, law reports, legislation as well as reported
articles. One will further use the Constitution5 as a point of reference considering it
encompasses the fundamental rights which are important in the discussion
surrounding euthanasia. Chapter 1 of the Constitution states that the Constitution
is the supreme law of the Republic, law or conduct inconsistent with it is invalid and
the obligations imposed by it must be fulfilled. One will also utilise case law,
common law and relevant statutory law which forms part of the law which can
provide insight into the stance of euthanasia.

5
Constitution of the Republic of South Africa, 1996

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 CHAPTER 3

CONCEPTUALISATION OF CENTRAL RESEARCH THEMES

For all intents and purposes it is important to understand the terminology referred to
in this research paper and same should be understood to mean the following;

1. “Euthanasia”

The painless killing of a patient suffering from a painful and incurable disease
or an irreversible coma.

2. “Active Euthanasia”

When death is brought by an act, by use of drugs usually with the aid of a
doctor medical professional, or another person.

3. “Passive euthanasia

When death is brought by an omission, which can be done by withholding or

withdrawing treatment.

4. “Intention”

An intended act, aim or plan.

5. “Humane”

Having or showing compassion or benevolence.

6. “murder”

The unlawful premeditated killing of one human being by another.

7. “dignity”

The state or quality of being worthy of honour or respect.

8. “terminal illness” means an illness, injury or other physical or mental condition

that;
(a) in reasonable medical judgement, will inevitably cause the untimely
death of the patient concerned and which is causing the patient
extreme suffering; or

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 (b) causes a persistent and irreversible vegetative condition with the
result that no meaningful existence is possible for the patient.

CHAPTER 4

PROBLEM STATEMENT

South Africa does not have legislation which specifically deals with euthanasia.
Though there have been reported cases and rulings there is a fair amount of
uncertainty regarding the stance of our law on the topic. Active euthanasia however
in recent times has sparked debate again which has called for a review of the matter
as well as on the proposed draft bill which was drafted by the South African Law
Commission in its report on euthanasia and artificial life. It is without a doubt that
there are two ends of the spectrum to be considered in the debate of active
euthanasia. However as with any other law whether prohibiting or conferring a right
there is the opposite effect to be considered.

The purpose of this research is to establish the legal status quo as well as the
historical development of the South African law relating to active euthanasia. This
will include a look at the values enshrined in the Constitution which may be directly
affected by the practice of active euthanasia, what are the values which make up
the debate on euthanasia which have been considered by the courts as well as
reported in law reform commission reports. Furthermore, is there a need to establish
legislation which specifically deals with euthanasia and if so what should same
encompass in order to address the relevant concerns surrounding the topic of
euthanasia.

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 CHAPTER 5

HYPOTHESIS

In recent time South African courts have been tasked with ruling in respect of with
active euthanasia. As recent as 2017, the case of Minister of Justice v Estate
Stransham Ford the Supreme Court of Appeal provided a clear stance on the current
legal position in South Africa pertaining to active euthanasia. Though consent is not
a defence to murder, it would be of importance to review and develop the law
pertaining to active euthanasia. The End of Life Decisions Act served to address the
concerns and report on provisions relating to active euthanasia as an option

5.1 THE DRAFT BILL ON END OF LIFE DECISIONS

The South African Law Reform Commission Act,6 served to establish a South
African Reform Commission, hereinafter referred to as “the Commission” and to
provide for matters incidental thereto. The Commission submitted its report on the
investigation into euthanasia and the artificial preservation of life. The Commission
set out different options to deal with the issue of active euthanasia, consisting of;
confirmation of the present legal position, decision making by the medical
practitioner and decision making by a panel or committee.

In November 1998 the South African Law Commission compiled a report which was
titled Euthanasia and the Artificial Preservation of Life, and submitted to the Minister
of Health for determination. This report contained a number of possible options
relating to euthanasia, however the proposed therein was never enacted and very.
The proposed bill however has been a recurring topic recently following a judgement
in the Estate Stransham Ford7 case. One feels that South Africa is at a point where
it has become necessary to review the option of enacting legislation which will
greatly deal and address the uncertainty surrounding the debate on active
euthanasia. It is therefore necessary to review the findings of the Law Commission.

Though consent is not a defence to killing someone, the debate in respect of active
euthanasia also concerns itself with the right a person has in respect of a decision
impacting their life. The right to life is enshrined in Section 11 of the Constitution.

6
South African Law Reform Commission Act 19 of 1973
7
Minister of Justice v Estate Stransham Ford 2017 (3) (SA) 152 (SCA

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This is also an issue of debate on whether or not a person also has the right to end
such life. Furthermore, Section 12(2)(b)8 states that everyone has the right to bodily
and psychological integrity which includes the right to security in and control over
their body. It can be argued that with capacity one should be given the right to
request active euthanasia and that legislation be enacted to regulate the practice
and procedures relating to active euthanasia as well as to address any
contingencies and any safeguards which would be necessary in possible active
euthanasia scenarios. One feels that the End of Life Decisions act be reconsidered
in relation to case law and developments in the debate around euthanasia. The End
of Life Decisions should be considered in conjunction with the constitution, public
policy, common law rules, journals and academic writings as well as with
consideration to the economic status of the country.

5.2 Constitutional Rights within the Active Euthanasia Debate

The Constitution is the supreme law of the Republic; law or conduct inconsistent
with it is invalid, and the obligations imposed by it must be fulfilled.9 Having said the
above, it is evident that active euthanasia if enacted would infringe or allow persons
to invoke certain rights enshrined in the Constitution. Rights such as the right to life,
human dignity and patient autonomy are central to the debate on active euthanasia.

5.2.1 The Right to Human Dignity

Everyone has inherent dignity and the right to have their dignity respected and
protected. 10 This means that one has the right to be respected. The context herein
however is that patients have the right to have their views respected and thus to
have their preferences carried out.

5.2.3 The Right to Life

Section 11 of the Constitution enshrines the right to life. It is therefore from this right
that one would assume that the right to life is also the right to waive said right.

8
Constitution of the Republic of South Africa, 1996
9
Section 2 of the Constitution of the Republic of South Africa, 1996
10
Section 10 of the Constitution of the Republic of South Africa, 1996

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However enlisting the assistance of a third party has different implications on this
right as is the case with active euthanasia.

5.2.4 Patient Autonomy

The National Health Act11 provides for a patient’s right to self determination and the
requirement for informed consent and sets out the nature and scope of the
information that should be disclosed. The Act provides that the disclosure should be
done in a language that the patient understands and the patient’s literacy level
should be taken into consideration.12

11
National Health Act 61 of 2003
12
Section 2 of the National Health Act 61 of 2003

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 CHAPTER 6

PROPOSED CHAPTER OUTLAY

CHAPTER 1: INTRODUCTION………………………… ………………………..4

CHAPTER 2: RESEARCH METHODOLOGY………………………..5

CHAPTER 3: CONCEPTUALISATION OF CENTRAL RESEARCH THEMES……6

CHAPTER 4: PROBLEM STATEMENT HYPOTHESIS………………………...7

CHAPTER 5 HYPOTHESIS

5.1 The Draft Bill on End of Life Decisions

5.2 Constitutional Rights within the Active Euthanasia Debate

5.2.1 Right To Life

5.2.2 Right To Dignity

5.2.3 Right To Autonomy

CHAPTER 6: PROPOSED CHAPTER OUTLAY

CHAPTER 7: TIME FRAME

7.1 THE SLIPPERY SLOPE

CHAPTER 8: POINTS OF DEPARTURE AND ASSUMPTIONS…………………10

CHAPTER 9: CONCLUSION……………………………………………………..11

BIBLIOGRAPHY………………………………………………..13

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 CHAPTER 7

PROJECTED TIME FRAME

FINAL RESEARCH PROPOSAL 20 MAY 2019

Draft research proposal 08 April 2019
Feedback on draft research proposal 14 May 2019

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 CHAPTER 8

POINTS OF DEPARTURE AND ASSUMPTIONS

It can be said that there is a link between murder and active euthanasia in the sense
that one intentionally and unlawfully causes the death of another. Since active
euthanasia is against the law one finds the element of unlawfulness. It is also a
concern that the other side of the coin of active euthanasia could be coercion and
in some cases actual murder where the medical practitioner could intentionally kill a
patient never having had capacity or even having given the necessary permission
for active euthanasia. It is therefore important that legislation be enacted to deal with
the rights, procedures and limitations relating active euthanasia. It goes without
saying that more often than not laws are broken and therefore it would be necessary
to incorporate statute to deal with this. Medical profession can be regulated through
means of a statute which will make provision for both best and worst case scenarios.

Freedom of choice13 is a right which also plays a role in the active euthanasia debate
and it should be considered insofar as active euthanasia requires a choice to end
ones life by the patient in question. The point which can be made therefore is that
the law not infringe on ones right to freedom of choice unjustly.

One should note however the importance of the limitation clause14 in the
Constitution. The limitation clause states that the rights in the Bill of Rights 15 may
only be limited in terms of law of general application to the extent that the limitation
is reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom taking into account all relevant factors. This is
important that the subjects of active euthanasia should understand in that rights are
not without reasonable limitation.

13
Constitution of the Republic of South Africa
14
Section 36 of the Constitution of the Republic of South Africa
15
Chapter 2 of the Constitution of the Republic of South Africa

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8.1 THE SLIPPERY SLOPE

An important question in the active euthanasia debate is whether by enacting

legislation legalising active euthanasia, are we unlocking the gateway to
uncontrolled euthanasia? Checks and balances are a fundamental principle when
enacting legislation. It is without doubt that active euthanasia may be used for
different purposes other than as envisioned. In a country so rife with crime it is
important to note that active euthanasia may be used to further illegal intentions.
For example; a physician could further his own agenda by ending the life of a patient
in the pretence that such patient enlisted the physician’s help to end their life. It
would therefore be important to have checks and balances which would take into
account the most possible negative scenarios as well as checks to establish the
legitimacy, rationality and the patient’s mental health to make such decisions.

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 CHAPTER 9

CONCLUSION

Rachels16 argues that active euthanasia is humane and that in the fact that there is
no moral difference between active and passive euthanasia. One is inclined to agree
with Rachels as ultimately euthanasia is about relieving the terminally ill patient from
what they feel to be an unbearable life, this decision is has nothing to do with the
perpetrator or person who undertakes to assist in this regard. The Health
Foundation17 in the UK has introduced what they term “shared decision making”,
which is an extension of the informed consent process and includes listening,
informing, discussing, deciding and documenting treatment options. It engages the
patient with regard to treatment options which are specifically suitable to the
individual. In this way one can ensure that patients and medical practitioners are in
agreement as to the treatments and options available to the patient.

One does not argue however with the fact that introducing legislation regulating
active euthanasia in a country such as South Africa would open the doors to crimes
relating to the killing of innocent terminally ill patients. It is therefore important that
there be a development in the common law which will also deal with the
uncertainties, checks and balances and procedures relating to active euthanasia.

16
Rachels, James. “Active and Passive Euthanasia.” New England Journal of Medicine N Engl J Med
17
The Health Foundation; an independent charity committed to bringing about better health and health
care for people in the UK

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BIBLIOGRAPHY

I Mahomed Commission of inquiry into Euthanasia and the Artificial Preservation of

Life in South Africa: Project 86 (1998)

Rachels, James. “Active and Passive Euthanasia.” New England Journal of

Medicine N Engl J Med

Currie, I., & Erasmus, G. The Bill of Rights handbook. Lansdowne: Juta & Co

The Constitution of the Republic of South Africa, 1996

The End of Life Decisions Act, 1998

Minister of Justice v Estate Stransham Ford 2017 (3) (SA) 152 (SCA)

S v Makwanyane and Another (CCT3/94) [1995] ZACC 3

S v Hartmann 1975 (3) SA 532 (C)

Richter and Another v Estate Hammann 1967, (3) SA 226 (C)

National Health Act No. 61 of 2003

http://www.bbc.co.uk/ethics/euthanasia/overview/activepassive_1

https://www.dailymaverick.co.za/article/2017-09-20-euthanasia-back-in-courts-as-
doctor-fights-for-right-to-die/

http://www.saflii.org/za/cases/ZACC/1995/3.html

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3612319/

http://www.scielo.org.za/scielo.php?script=sci_arttext&pid

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