Nonhlanhla Mnengi 739401 14 October 2016

Interpreting the Right to Life in South Africa to include Euthanasia.

Student Number: 739 401

Student’s Name: Nonhlanhla Mnengi

Independent Research Assignment LAWS4042 Degree: Bachelor of Laws (LLB)

Faculty: Commerce, Law & Management

Department: School of Law

University of the Witwatersrand

14 October 2016

Supervisor: Mr Paul Kaseke Snr

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Table of contents

1. Introduction 1

2. Background 2-3

3. Key terms 3-5

4. Robert Stransham-Ford Case

Facts and Judgement 5-6

4.1. Analysis of the Right to Human Dignity 8-10

4.2. Analysis of the Right to Freedom and Security of Persons 10-11

4.3. Analysis of the Right to Privacy 11-12

4.4. Analysis of the Right to Life 12-14

4.5. Analysis of the causation element 14-15

4.5.1. Agliotti case 15-17

4.6. Analysis of the element of unlawfulness 18

5. Arguments against the notion euthanasia-Slippery Slope 19

5.1. Doctor Patient relationship 19

5.2. Hippocratic Oath 20

5.3 Religious and moral views 20

5.4. Sanctity of life 20-21

6. Arguments for the notion euthanasia-Doctor-patient relationship 22

6.1. The right to die 22

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6.2. The Libertarian argument 22-23

6.3. Medical resources 23

6.4. Euthanasia argument 23

7. Conclusion 23-24

8. Bibliography 25-28

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Abstract of the paper

This paper serves to critically analyse how the notion of euthanasia should not, upon

legalization, be part of a process of eliminating other medical choices, but how it can co-

exist in parallel and conjunction with the options of palliative care and other medical

means. This paper will only undertake this enquiry in terms of the physical aspect and not

emotional distress. Thus, a full examination on the treatment of this notion will be analysed

in the Stransham-Ford case. What is more that this case will bring about, is a further

analysis on the fundamental Constitutional rights that ought to be protected by the South

African legal framework. In addition, this paper will attempt to analyse how these rights can

indeed be balanced, without compromising on the autonomy of the terminally ill patient. It

will also launch an investigation that what the law seeks to protect us from, namely active

voluntary euthanasia, is actually a reality in the form of passive euthanasia. The Agliotti

case, will come in to place emphasis on the causation element and how important it is for

the last constituting act to have been as a result of the patient or victim in order for one not

be liable for a charge and conviction of murder, but attract a lenient sentence for a

compassionate act, on the basis of euthanasia. Fundamentally, one should be allowed to

make a personal choice in the manner in which they die if it means doing so in the name of

dignity and security over oneself.

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INTERPRETING THE RIGHT TO LIFE IN SOUTH AFRICA TO INCLUDE EUTHANASIA.

I. INTRODUCTION

This paper seeks to address how euthanasia can be balanced to give effect to the right to

life without compromising the autonomy of the individual, a premise upon which the

Constitution1 is based on. A further enquiry will be undertaken into other affected

fundamental rights and how this can in turn, not just be beneficial to the dehumanized

individual but to a democratic society whose convictions are continually evolving. In

addressing the subject matter at hand, this paper will be divided into five sections. The first

section will be largely definitional and define relevant concepts for purposes of this paper.

The second section will dissect and comparatively assess in detail case law that has

created fertile ground upon which discussions and possibly legality of euthanasia can now

materialize. These will include the Stransham-Ford2 case and the Agliotti3 case. The third

section will look at the shortcomings that threaten the possibility of South Africa embracing

the legalization and implementation of euthanasia. The fourth section will look at how the

concept of euthanasia can in turn contribute to consolidating this right to life. Finally,

conclusions will be drawn in light of the above whether the right to life can ultimately be

interpreted broad enough to embrace the notion of euthanasia.

II. BACKGROUND

The situation below aptly places the issues around euthanasia that this paper aims to

address. Petronella is an 85 year old fragile lady suffering from terminal stages of cancer.

She spends all of her days bedridden in anguish from the excruciating pain throughout her

body from bed sores, frequent vomiting and inability to swallow solid foods, which has led

her to weight loss. But most importantly, she cannot keep up with the daily normal

1 The Constitution of the Republic of South Africa, 1996.2 Stransham-Ford v Minister of Justice and Correctional Services and others [2015] 3 ALL SA 109 (GP).3 S v Agliotti 2011 (2) SACR 437 (GSJ).

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functions of bathing, brushing her teeth and keeping a normal conversation with her loved

ones. She cannot remember the good memories of her life and has almost become

unrecognisable to herself. She wants to die while she recognises her environment and her

loved ones around her. Jaden, her son, unbearably sees her bones starting to stick out of

her body, her fingers becoming even fainter, her skin getting paler and her hair falling out.

They both know that there is no prospect of recovery. As a result, she decides not to

continue with chemotherapy because she wants to die with dignity. Jaden therefore helps

his mother die in peace by injecting her with an overdose of Morphine4 because he loves

her. In the present South African legal framework, Jaden’s act of compassion will attract a

murder charge and conviction.

Though Jaden’s intentions are noble and certainly compassionate, the law views his

actions as unlawful and intentional in causing the death of Petronella. As unlawful as it is

to intentionally assist in the death of another, it is clear that Petronella consented to her

own ‘murder’ as it were. Factually, it can be said that she voluntarily refused further

treatment and consented to Jaden’s intervention in ending her life. This paper essentially

is premised on the view that in similar situations, Jaden and other like-minded citizens,

should not be penalised or vilified by the law for carrying out similar acts of compassion.

The argument as this paper will show, is that it should be acceptable for one to end their

life since it belongs to them. Alternatively, this paper puts forward the argument that when

one is denied of the right to end their own life, the law allows for the dehumanisation of

such patients and allows for their dignity to be eroded by their debilitating disease(s). This

scenario can be defined as mercy killing which is different from euthanasia. However, both

under the common law crime, this scenario can be defined as murder, being the unlawful

and intentional killing of a human being.5 It does suffice that there should be criminal

sanctions for acts of mercy because it is usually administered by a family member, which

is not in a controlled environment compared to euthanasia. However, irrespective of the

terminology, whether it is an act of mercy killing, euthanasia or assisted suicide, the basic

premise upon which these ought to be legally justifiable to occur is in conjunction with

stringent policies to ensure safety of the patient but the quality of life should be a

4 Morphine is a cancer pain-management drug that is heavily controlled because of its ability to cause death

when abused. It is lethal in high doses and for the purpose of this scenario can be assumed to have caused

the death of Jaden’s mother, Petronella.5 Dada and McQuoid-Mason Introduction to Medico-Legal Practice (2001) at page 26.

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persuasive factor. Hence, it will be shown throughout this paper that what is more

important is not the mere formality of life but the substance of such a life- quality of life and

not simply its quantity is what the law should protect. This paper therefore insists in

examining substance over form when it comes to euthanasia.

III. KEY TERMS USED IN THE PAPER

It is important to clarify that different authors have different definitions and this only one set

of definition. Euthanasia is ordinarily termed as mercy killing and is at times confused and

compared to assisted suicide.6 Euthanasia can be defined as occurring within the medical

framework between the medical practitioner and the terminally ill patient, where the latter

in most cases requests the medical practitioner to administer a fatal dosage or give the

patient the fatal dosage in efforts to end their lives.7 On the other hand, assisted suicide

refers to a patient’s emotional state of distress and as a result requests another person to

end their misery.8 Assisted suicide is undoubtedly the most controversial aspect

surrounding the euthanasia debate, not only in South Africa but in most parts of the world. 9

Euthanasia is further divided into active and passive euthanasia as well as voluntary and

involuntary euthanasia.10

FORMS OF EUTHANASIA

There are 4 types of euthanasia and each will be described briefly below.

Active and Passive Euthanasia

Active euthanasia has been described as when the medical practitioner has ‘actual’

intention or ‘direct legal mind’ to hasten the death of the patient, either by administering a

lethal dose of medication to the patient or in assisting the patient to self-medicate. 11 In this

6 Agliotti Supra note 3 para 12.7 Ibid.8 Ibid para 13.9 Ibid para 14.10 Agliotti supra note 4.11 http://www.hefssa.org/images/uploads/16h30_Kock_PILANSBERGA_Sun.pdf written by Elsabe de Kock

Euthanasia: Where are we in 2015? Page 13-14.

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instance, the patient dies immediately because of the ingested medication and not as a

result of the disease.12 While passive euthanasia has been described as when the medical

practitioner withdraws, denies or withholds medical treatment due to medical reasons.13

Conversely, the patient can render his/her consent to the medical practitioner to withdraw

medical treatment that he/she believes is futile, with the intention to relieve pain and

suffering, which will inevitably cause death.14 In this situation, the medical practitioner has

‘subjective foreseeability’ that death will occur as a result of withdrawing or withholding the

treatment,15 thus, making the terminally ill patient succumb to death due to the disease.16

Although in both circumstances death will inevitably ensue from the positive acts of the

medical practitioner,17 the present South African legal framework is that assisted suicide

and active euthanasia as confirmed in Marengo,18 Bellocq19 and Grotjohn, is unlawful; and

passive euthanasia is lawful.

In the case of Stransham-Ford the court held that there is no distinction between active

and passive euthanasia.20 This principle was held by previous courts21 that whether the

medical practitioner undertakes to either withdraw or withhold medical treatment; or

prescribe medical treatment, the basis upon which these forms of euthanasia converge are

that death will eventually occur much sooner than later.22

VOLUNTARY, INVOLUNTARY AND NON-VOLUNTARY EUTHANASIA

12 Ibid.13 Ibid.14 Ibid.15 D J McQuoid-Mason’ Doctor-assisted suicide: what is the present legal position in South Africa?’ (2015)

105(7) South African Journal of Criminal Justice page 527.16 Ibid.17 Ibid.18 S v Marengo 1991 (2) SACR 43 (W) para 47 A-B.19 S v Belloocq 1975 (3) SA 538 (T) para 539 d.20 Stransham-Ford Supra note 2 para 21.2. This case will be discussed in detail in the following section.21 Clarke v Hurst NO and Other 1992 (4) SA 680 (D).22 McQuoid-Mason Op cit note 14.

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Voluntary euthanasia is where a patient is conscious, of a sound mind, intentionally

consents for their life to end.23 This mercy killing can either occur by verbally or on a

written document in the form of a living will.24 Although there are contentions with regards

to whether a competent individual can legitimately choose when and how to die, and

whether there are circumstances in which it should be legally justifiable to do so without

liability attaching.25

Involuntary euthanasia on the other hand occurs when the patient is euthanized without

their real and informed.26 This means that the patient chooses life but is killed irrespective

of his/her wishes, this is also called murder27 However, there are circumstances in which it

could be beneficial to the patient to die. However, at present it is universally condemned28

and is not the subject of this paper.

Non-voluntary euthanasia occurs when the terminally ill patient is under a state of

unconsciousness and unable to communicate his/her intentions of living or dying.29 This

results in a third party taking a decision on behalf of patient in the hope of expressing the

wishes of the terminally ill patient. This form of euthanasia should not be confused with

involuntary euthanasia.

IV. PRESENT LEGAL POSITION Stransham-Ford Case in the court a quo

23 McQuoid-Mason ‘Recent Developments concerning euthanasia in South Africa’ 1995 Law and Medicine

page 7.24 A living will is a declaration in which a by way of an advance directive refuses medical attention in the form

of being kept alive by artificial means.25 James Fieser and Bradley Dowden (Eds),’ The Internet Encyclopaedia of Philosophy’ 1998, pdf edition

page 304.26 McQuoid-Mason Op cit note 22.27 James Fieser and Bradley Dowden Op cit note 24.28 Ted Honderich ‘The Oxford Companion to Philosophy’ (Oxford University Press Inc.: New York, 1995) pdf

edition, page 252.29 James Fieser and Bradley Dowden Op cit note 24.

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The facts and judgment of the case

The Stransham-Ford case decided in the North Gauteng High Court, serves as a

launching pad when judging how South African courts treat the notion of physician

assisted suicide or physician assisted euthanasia after the dispensation of the democracy.

This case encompasses deeply seated religious and ethical convictions relating to the

sanctity of life and personal autonomy.30 The crucial issue that was before the court was

whether a terminally ill person can lay a claim to a constitutional right to request his/her life

be terminated by a medical practitioner by means of a lethal injection.31 Hence, in terms of

the common law, this type of conduct is contra boni mores,32 however, ‘empathy for the

compassionate killer’33 is largely demonstrated not from one being excused from the crime,

but leniency of the sentence.34 Thus, in order for one to understand the judgement set out

by the court, one needs to take cognisance of the facts of the case, the interpretation of

rights undertaken that by implication are affected, the issue of causation, the enigma of

passive and active euthanasia and the element of unlawfulness.35

Mr Robert Stransham-Ford (hereafter the Applicant), was a terminally ill cancer patient

who had a limited amount of time to live.36 He had exhausted numerous traditional

methods, other forms of medication as well as palliative care37.38 However, none of these

various methods had succeeded in alleviating the physical pain and suffering he endured,

30 Louise Jordaan ‘General principles and specific offences’ 2015 South African Journal of Criminal Justice at

376. 31 Ibid page 376.32 Can be alternatively termed as the legal convictions of the society, which are continually changing which

are also informed by the Constitutional law values.33 Louise Jordaan Op cit note 29.34 Namely Hartmann 1975 (3) SA 532 (C); De Bellocq 1975 (3) SA 538 (T) and Hibbert 1979 (4) SA 717 (D).35 McQuoid-Mason Op cit note 14.36 Stransham-Ford Supra note 2 para 3 and 6.37 Palliative care is a medical treatment that is mainly intended to relieve one from pain and suffering rather

than the end goal of preserving life and this kind of care includes ingestion of opioids called morphine. 38 Stransham-Ford Supra note 2 at para 8.2.

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as his condition continued to advance.39 As a result, the court held the following: that the

Applicant is entitled to be assisted by a qualified medical practitioner, who is willing to do

so, to end his life, either by administration of a lethal dosage or by providing the Applicant

with the necessary lethal agent to administer himself.40 No medical practitioner is

compelled to accede to the request of the Applicant and the medical practitioner who

assented to the request of the Applicant would not be acting unlawfully.41 Hence, the

medical practitioner would not be subjected to prosecution by the National Prosecuting

Authority or subject to disciplinary proceedings by the Health Professional Council of

South Africa.’42 Judge Fabricius further highlighted that this order does not validate the

draft proposals of the Bill on End of Life as contained in the Law Commission Report of

November 1998 (Project 86).43 Rather, the common law crimes of murder and culpable

homicide in the context of assisted suicide by medical practitioners are not affected,44 only

in the context of this judgement and not for future reference. 45 Section 39 of the

Constitution informed the decisions of the court, mainly that 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,46 freedom to bodily and psychological integrity;47 and

to that extent are declared to be overbroad and in conflict with the said provisions of the

Bill of Rights in the Constitution.48 In addition to the said facts, there are other

fundamentals, which will be discussed further, that have largely influenced how the courts

decided accordingly.

Analysis of Freedom and Security of persons and the control to die with dignity

39 Ibid para 6.40 Ibid para 26.41 Ibid.42 Ibid.43 Ibid.44 Ibid.45 Ibid.46 The Constitution Supra note 1 s10.47 Ibid s 12(2) (b), read with ss 1 and 7.48The Constitution Supra note 33. These Bill of Rights from the Constitution which will be further analysed in

detail.

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Respect and protection of each individual’s inherent human dignity as envisaged by s 10

of the Constitution is the foundation and cornerstone of our law. Section 7(2) of the

Constitution amplifies this instruction by mandating that the state must ‘respect, protect,

promote and fulfil the rights in the Bill of Rights. Although it is a mammoth task to define

human dignity,49 it can be said to function both as a value50 and as a human right.51 In S v

Makwanyane52 the court further overemphasised the importance of dignity as a founding

value of the Constitution53 and that human dignity, in its simplest form, refers to ‘an

inherent attribute of humanity that every human being possesses, in equal measure’ .54

Therefore, this right serves as the foundation of many other rights that are explicitly

entrenched in the Constitution, 55to the extent that should a right not be explicitly

entrenched in the Constitution, it will demand respect if it relates to a person’s dignity.56

Human dignity is interlinked and overlaps with the right to freedom and security of person;

life and privacy;57 all of which will further be discussed below.

The legal concept of human dignity is attached to three basic elements that have

crystallised, and accordingly, applied across jurisdictions.58 These are: the ontological

element, which encompasses that each individual has inherent human dignity;59 the

relational element that every individual is entitled to recognition and respect of that

inherent dignity,60 and the obligation on the state to provide minimum living conditions for

49 Bernstein and Others vs Bester and Others N.N.O. 1996 (2) SA 751 CC para 67 – 68.50The Constitution Supra note 1 ss 1(a) and 39(1) (a).51The Constitution Supra note 40.52 S v Makwanyane and Another 1995 (3) SA 391.53 Ibid para 328.54 Rinie Steinmann ‘Law and human dignity at odds over assisted suicide published 28 October 2015, pdf

edition on www.derebus.org.za/law-human-dignity-odds-assisted-suicide/ last accessed on 2 June 2016.55 Ibid.56 Joubert (Ed) ‘The Law of South Africa’ (2004) Volume 5 Part 3 page 58.57 Lourens Botha Grové ‘Framework for the Implementation of Euthanasia in South Africa’ University of

Pretoria 2007 page 12.58 C McCrudden ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19.4 European Journal

of International Law at 679.59 Ibid.60 Ibid.

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its occupants in the framework of socio-economic rights.61 Thus, all three of the above

elements in its totality embody the value and essence of in the constitutional context. 62

These elements have not been explicitly identified by the judges of the Constitutional Court

but have been consistently applied in their rulings, namely the dictum of O’Regan J in

Makwanyane63

Accordingly, it was inevitable for the court to undertake as its first inquiry an analysis of

human dignity with regards to the common law prohibition against assisted suicide.64 The

above mentioned crystallized elements set forth a foundation in the court’s reasoning. The

first and second elements of the concept of human dignity are applicable to the Applicant’s

claim that his dignity was infringed.65 To experience continuous unbearable pain and

suffering as a result of a terminal illness such as cancer, and not being able to request

assisted suicide, result in an infringement of dignity as a value and a right. 66 Cancer, in its

terminal stages is a disease that even though the patient is ingested with painkillers, the

resultant combination of both the medication which is intended to alleviate pain and

suffering, and the disease, the side effects result in the patient being far worse of. Not only

is it physically eroding the dignity of the patient but the painkillers make the patient

unaware of the actual pain.67 Thus, there is no dignity in not being aware of yourself, your

surroundings, and your loved ones, away from familiarity or home in a hospital.68The court

in response to the submissions set out by both parties made reference to the Carmichele69

case, that rights that individuals have under the Bill of Rights are ‘subjective rights’.70 The

Court needed to undertake a subjective view of the condition of the Applicant, who

61 Ibid.62 Ibid.63 Makwanyane Supra note 51 para 328.64 Mc Cruddden op cit note 58.65 Supra note 2 para 12.66 Op cit note 53.67 Antoinette Muvhango Ouma Lukhaimane ‘The Right to Die: Does the Constitution Protect This Right?’

University of South Africa 1997.68 Stransham-Ford Supra note 2 para 15.69 Carmichele vs The Minister of Safety and Security and the Minister of Justice and Constitutional

Development 2001 (4) SA 938 CC para 54.70 Ibid.

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criticizes that his constitutional rights have been affected.71 Which the court granted the

complaint justified in his submissions,72 as this impacted in his quality of life.73 Pain and

suffering can diminish a person’s quality of life, which had done so in the Applicants’ life.

This drove the Applicant to lose the willingness of life hence requesting to be assisted to

die. This bears the enigma that dignity is so readily legally protected when one is defamed,

however, when a patient is asking to keep their dignity intact they are forced to live.74

While in the former, it does not affect the physical wellbeing of the person, of which the

patient is denied this personal right which ultimately drives one to suicide. 75 This again

speaks to the fact that quantity of life is prioritised over quality of life. Yet, animals

seemingly deserve their dignity to be protected over and above that of a human life which

breathes the same life.76 It is understood that to give meaning to the right of life, medical

practitioners should sustain life rather than terminate it. However, once it borders beyond a

life with constant suffering, it also contravenes s10 and 12 of the Constitution, to which the

right to life should symbolic of the existence of the right to die.

The right to human dignity forms the basis of and overlaps with the right to freedom and

security of the person77. Section 12 of the Constitution protects health-related interests

which includes the right not to be treated or punished in a cruel, inhuman or degrading way

and for everyone to have the right to bodily and psychological integrity, which includes the

right to security in and control over their body. ‘There is a difference between a right to

'security in' your body as opposed to a right to 'control over' your body’.78 A right to security

in your body refers to the protection of your bodily integrity against interference by the

state and the right to be left alone, however, a right to control over your body refers to

physical autonomy over your body and the right to live your life as so chosen.79 Thus, in

the health-

71 Stransham-Ford Supra note 2 para 13.72 Ibid.73 Ibid para 14.74 Antoinette Muvhango Ouma Lukhaimane Op cit note 65 page 12.75 Ibid.76 Ibid.77The Constitution Supra note 1 s12.78 Hanneke Vere and Pieter A Carstens ‘Extreme elective or cosmetic surgery and controversial patient

choice: A Constitutional analysis’ 2014 SAJHR 89 at 99.79 Ibid.

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care context as in the Stransham-Ford case, the right to bodily and psychological integrity

typically entails a right to obtain informed consent by the patient to either receive or reject

medical treatment,80 even to his detriment.81 Hence, the court held that a person’s decision

on when to end their life, it is a manifestation of their own sense of dignity and personal

integrity.82

The court in Jordan83 stated that the exercise of s10 and 12 rights, relates to s14 of the

Constitution.84 The right to privacy is not explicitly made reference of in Stransham-Ford,

but could be implied by reference of what the court decided. The Jordan case defined

privacy to be an autonomy to make decisions in relation to important aspects of one's

personal life.85 Equally so, in National Coalition for Gay and Lesbian Equality86 case, it

stated that the right to privacy 'recognises that we all have a right to a sphere of private

intimacy and autonomy'.87 Such that it follows that one should be allowed to make

decisions that concern how they intimately deal with their body as a way of protecting their

privacy.88 This means that matters that are labelled as private and should be

dealt with privately, cannot be judged or regulated by the state'.89Hence, s14 'serves to

protect and foster' human dignity.90 Most importantly In Bernstein,91 it stated that s14 of the

Constitution extends to all aspects of one's life that one can that should be legitimately

expect to be kept private.92 A legitimate expectation of privacy entails both a subjective

80 Ibid.81 Barkhuizen v Napier 2007 (7) BCLR 691 (CC) para 57.82 Stransham-Ford Supra note 2 para 18.83 S v Jordan 2001 (10) BCLR 1055 (T).84 Ibid para 53.85 Ibid para 76.86 National Coalition for Gay and Lesbian Equality v The Minister of Justice 1999 (1) SA 6 (CC).87 Ibid para 32.88 Jordan Supra note 83.89 M Swanepoel 'Embryonic Stem Cell Research and Cloning: A Proposed Legislative Framework in Context

of Legal Status and Personhood' LLM dissertation, UP (2006) page 115.90 Jordan Supra note 81 para 81.91 Bernstein v Bester 1996 (2) SA 751 (CC).92 Ibid para 75.

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and objective component.93 In terms of the subjective component, it refers to the

individual's personal expectation of privacy, while the objective component refers to the

objective reasonableness of that expectation in the eyes of society.94

In the Stransham-Ford case when the court eventually came to the conclusion that the

absolute prohibition on assisted suicide in common law does not accord with the rights that

the Applicant relies on.95 Euthanasia is a matter of patient autonomy and individual

choice,96 hence the reason why this action arose. Applicant was analysed by the

psychiatric numerous times and was highly impressed about how much he had reconciled

with himself of his condition and understood why he wanted to euthanized.97 The court

further went to state that such as a living person can do what they will with their body, so

should a terminally ill patient dispose, deal with their own bodies however they so wish, 98

and take responsibility for their own passing.99 Thus, it is important to advance the quality

of life over and above mere life. Of course this decision to end life can be communicated

prior to a stage in which medical intervention is required which is not problematic. But even

this autonomy can be expressed while in of pain and suffering, as long as it is real and

informed, as in this case. The choice of a patient such as the present, is consistent with an

open and democratic society, values and norms expressed in the Constitution.

.

Right to Life

Section 11 of the Constitution relates to the right to life which must be read in conjunction

with right to dignity and privacy. This right ranks high if one where to equate to a hierarchy,

which actually means that one cannot exercise any other right unless they are alive.100

93 Ibid.94 Ibid.95 Stransham-Ford Supra note 2 para 26.96 Ibid para 13.97 Stransham-Ford Supra note 2 para 2.98 Ibid para 17 and 18.99Stransham-Ford Supra note 2 para 19.100 Kgorohlo Micro Moabelo ‘Inconsistency in Judicial Decisions: The Right to Life in Perspective’ University

of South Africa 2014 page 52.

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Thus, the right of life means the right not to die or have their life taken away. 101 Section 11

right ceases to exist from a medical perspective when a person’s blood circulation and

respiration stop to operate and an associated loss of function in the central nervous

system.102 However, this criterion is no longer sufficient to evaluate the standard of life.103

Life is more than existence.104 ‘It is the right to be treated as a human being with dignity:

without dignity, human life is substantially diminished.’105 It is worth noting that even the

terminally ill patient must be mindful of the future quality of life if they are in a persistent

vegetative state, as life is not worth living if their physical quality of life is constantly under

struggle.106 Thus, the bare minimum for a quality life should entail both physical and social

wellbeing, as anything less than a dignified life is a state of vegetation, degradation then

possibly death.

The court in Stransham-Ford held that s11 safeguards a person’s right and the State and

society.107 The court interpreted the right to mean that it does not oblige an individual to

live, no matter what the quality of his life is.108 The emphasis placed by the court was on

the sacredness of the quality of life rather than mere life per se.109 The medical profession

is founded upon the premise of preserving life or rather simply put, prolonging diminished

quality of life which might inevitably lead to death. It cannot be that the intention of the

drafters of the Constitution was to preserve the mere existence of life and not the quality of

life per se. Whether it is injecting morphine, admitting a person to a hospice, keeping them

alive via respiratory machines which falls under palliative care, which is one of the ways to

preserve life. However, the quality of life in those instances are more often compromised.

This relates to a direct contravention of s12 of the Constitution, that the person dies an

inevitable slow painful torturous death. Then one has to ask whether It can be safely

assumed that the non-existent right to die then comes into play when the right to life bears

101 Ibid.102 Ibid page 55 and Schwar TG, Loubser JD, Olivier JA (1998) The Forensic ABC in Medical Practice, a

Practical Guide, and page 397. 103 Ibid page 8.104 Ibid.105 Makwanyane Supra note 51 at 326 read with para 12 of Stransham.106 Kgorohlo Micro Moabelo op cit note 100.107 Stransham-Ford Supra note 2 para 23.108 Ibid.109 Ibid para 14.

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no fruit. One would think so, that when there is no prospect of recovery or improvement on

the life of the patient, they should be able to make that personal choice to end their life in

peace, when living yields no dignity.

Stransham-Ford CaseThe causation element

The causation element did influence the decision of the court.110 In law ‘causation’ refers to

an act or omission that causes or accelerates death.111 In cases of murder or culpable

homicide, the accused person need not be the sole cause of the death of the deceased

others may also be held liable for contributing to it.112 Causation in this instance is where a

doctor’s act is the sole cause of death by administering a fatal dose of medication that

does not enable the illness or injury to kill the patient.113 However, in circumstances where

one or more events contribute towards the death of a person, the event that eventually

hastens the death is regarded as its cause.114Therefore, in situations of ‘double effect’115,

where the administration of increasing doses of medication with the sole intent of

lessening pain and suffering hastens the patient’s death, the increased dose will have

‘caused’ the death of the patient. However, what matters the most is the intention of the

medical practitioner.116

Thus, the inquiry delved in by the court is that there is really no difference between the

active, passive euthanasia, and injecting the patient with morphine with the eventual

intention that death will occur due to the increased dosage.117 Passive euthanasia is an

already acceptable method of treatment both medically, legally and morally so.118 This was

seen endorsed by the Hurst case in which the wife’s husband was withdrawn an artificial

feeding machine, a request made by the patient while in good health. Accordingly, 110 McQuoid Mason op cit note 14.111 Burchell J. Principles of Criminal Law. 3rd ed. Lansdowne: Juta & Co. Ltd, 2006 page 209.112 S v Daniels and Others 1983 (3) SA 275 (A).113 S v Hartmann 1975 (3) SA 532 (C)114 Ibid.115 This will be discussed below.116 Strauss, S A ‘Doctor, patient and the law’ 3ed Van Schaik Publishers page 346.117 Stransham-Ford Supra note 2 para 14.118 Kgorohlo Micro Moabelo op cit note 97 page 6.

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Stransham-Ford case engaged in whether there is any difference between passive and

active euthanasia.119 Death does ensue from both circumstances, yet active euthanasia is

unlawful, while passive euthanasia is lawful. With the latter, the court made a submission

that is it not a case of dolus eventualis because the medical practitioner does foresee and

reconciles with the fact that upon withholding or withdrawing treatment, the patient will

inevitably die.120 It is also an interesting contention to bring up, that passive euthanasia

should attract responsibility because of a prior conduct by the doctor e.g. to ingest

morphine, in which there exists a protective relationship between the patient and the

doctor.121 This will create a duty if the treatment was supposed to be discontinued.122

However, as mentioned if the intention was to alleviate pain and suffering and the patient

seemed that they were still responding from the treatment, they should not attract criminal

responsibility. Hence, administering medicine is obviously a commission and act of

withdrawal is nonetheless a commission it remains an active and positive step taken by

the medical staff directly causing the death of the patient.123 Once it is recognised, that a

medical practitioner has a duty to recognise and ensure that a terminally ill patient’s dignity

is protected by an omissio, then, the same duty remains on a medical practitioner through

a commissio.124

THE AGLIOTTI CASE

Facts and judgement of the case

The Agliotti case is only dealt with in relation to the element of causation, as far as

assisted suicide is concerned. In Agliotti, the accused who was Norbert Glenn Agliotti

(hereafter Agliotti) was charged on four counts, but for our purposes, count 4 on the

charge of murder will be our point of attention.125 According to the Agliotti and all the

witnesses in the case, Bret Kebble (hereafter Kebble), who was the Mafia boss and now

119 Stransham-Ford Supra note 2 para 12.120 Ibid.121 Antoinette Muvhango Ouma Lukhaimane’O cit note 65 page 4-5.122 Ibid page 5.123 Hartmann Supra note 33.124 Agliotti Supra note 3.125 Ibid para 5.

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the deceased, had ordered the killing of various business enemies,126 but also ordered his

own killing, which is our point of attention. According to evidence by the witnesses, Kebble

communicated with Stratton that he was undergoing difficulties in his organization and felt

under huge amounts of strain. As a result, he thought to pursue the route of suicide, by

requesting Nassif, Agliotti and Stratton to obtain a pill that could assist him in dying without

being traced in the post mortem.127 The plan was to put the pill unnoticed, in either the

drink or food of the pilot flying the plane who would then have a heart attack, in which the

plane would crash, consequently Kebble dies.128 This was largely important for the benefit

of an insurance benefit that would be paid out to his family.129 Since Nassif was unable to

source such a pill that could not be traced in a post-mortem. It was then agreed that a hi-

jacking would be staged as another plan.130 The devised plan was that Kebble on a certain

night would drive to a certain road and stop where he would be shot and killed by hired

executioners.131 According to the plan was eventually executed and K was shot and killed

as per the plan.132

Kgomo J discussed whether the act of assistance in suicide could, in light of the particular

facts of the case, be considered to be the legal cause of the death.133 Additionally, it would

have to be considered whether the death was in actual fact foreseen by the accused.134

The judge upheld Grotjohn by ruling that the question whether a person who instigates,

assists or puts another in a position to commit suicide is committing an offence depends

on the facts of the particular case.135 The court further made the important point that the

mere fact that the last act of the person committing suicide is the person's own, voluntary,

non-criminal act does not excuse the other involved party from liability.136 Which would

have to be judged on a case by bas basis. In a subsequent case, in Hibbert the court took

notice of the guidance provided by the Appellate Division in this regard and convicted the

accused of murder in circumstances where he had handed his depressed wife a firearm

126 Ibid.127 Ibid para 151.5 and 203.128 Ibid 204.129 Ibid.130 Ibid para 60-61.131 Ibid para 69-79.132 Ibid.133 Louise Jordaan ‘General principles and specific offences’ 2011 SACJ 356 at 358.134 Ibid.135 Ibid.136 Ex parte die Minister van Justisie; In re v Grotjohn 1970 (3) SA 355 (A) para 365.

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after she had expressed to him her desire to commit suicide.137 The court held that her last

act of shooting herself was no novus actus interveniens which broke the chain of causation

set in motion by the accused.138 Hence, Agloiiti was acquitted on a charge of murder or

conspiracy against Kebble.139

In terms of the evidence given by Agliotti, Kebble initiated his own killing by entering into

an agreement with executioners to kill him. He performed an act himself by driving his car

to a certain spot where the execution had occurred. The court concluded that the acts of

the executioners of firing shots at Kebble while he was sitting in his car were mere acts of

assistance unrelated to the causal chain of events resulting in the victim's death. As an

alternative, the alleged firing of the shots at Kebble which had allegedly killed him would

succeed in the test of factual and legal causation.

In conclusion it can be said that causation in the Agliotti case describes the phenomenon

that assisted suicide undertaken by someone else is illegal and not termed assisted

suicide, but murder. Whereas if the aiding was the giving of the pill or gun, in which the

final act was Kebble administering a pill given to him by Stratton and/or Nassif, then it is in

a sense ‘acceptable’ and no one can really be liable for the causation of the death, unless

we follow the Hibbert case. Moreover, this is testament to the idea that regardless of the

form of euthanasia, whether lawful or unlawful there is no difference as the resultant is

death. None of them can be said to cause an easier way of dying, rather one needs to

place emphasis on the manner of death which is not one’s control. Dignity is dependent on

the respect of the person’s autonomy to decide with absolute sovereignty that the burden

to live must be removed when there is no prospect of recovery. The quality of life of the

human being must place preference over and above the statistics of living people. Hence,

causation should be the compass one looks to, to re-direct South African legal framework

in terms of which direction to undertake as far as the values and norms of the Constitution

informing the concept of euthanasia.

Stransham-ford Case137 Hibbert Supra note 33 at 722E-H.138 Ibid.139 Ibid 254.

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The test for unlawfulnessThis was another factor that affected the decision of this court. In cases decided before the

Constitution came into effect, the courts held that the test for unlawfulness was the ‘legal

convictions of the community’.140 However, since then the Constitutional Court has held

that the courts should not be influenced by public opinion but by the values of the

Constitution, the most important of which is the right to dignity.141 It also held that the right

to life is inextricably linked to the right to dignity and means something more than

‘existence’.142Thus, in determining the patient’s quality of life, the court in the Stransham-

Ford case applied the values of the Constitution and concluded that the right to life ‘cannot

mean that an individual is obliged to live, no matter what the quality of his life is’.143This

approach is similar to that of the court in Hurst case which allowed the patient’s wife to

order its withdrawal without being exposed to legal sanctions. Thus, active euthanasia is

only unlawful not because it so far removed from the nature of passive euthanasia, but it is

unlawful because actively trying to kill someone with the direct intention of causing death

would be in contradiction with the Hippocratic Oath of medical practitioners of reserving

and sustaining life at all costs and let nature take its place. Hence, as discussed from

above if one were to look at the underlying nature and responsive nature of active

euthanasia it is lawful, as in passive euthanasia it causes death sooner than later. In both

circumstances fundamental rights in the Constitution are subject to violation as long as the

autonomy of the patient who has no prospect of recovery is forced to live a painful life with

no meaning and experience.

V. Arguments against the notion of euthanasia

Various authors have varying views about the detriment that could be caused the

legalization of euthanasia.

Slippery Slope

140 Hurst Supra note 20.141 Makwanyane Supra note 51.142 Ibid.143 Stransham-Ford Supra note 2.

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Labuschagne made an argument that the notion of slippery slope might threaten the

eventual legalization of euthanasia.144 It centres on the premise that legalizing euthanasia

will reduce the value of human life and ultimately leading to abuse and foul play. 145 An

example of this approach were the Nazis and the eugenicists.146 The American eugenicists

were interested in eradicating mental retardation.147 There was a strong element of racism.

On the other hand, the Nazi programme was of active involuntary euthanasia targeted to

mentally incapacitate children. In both instances, they were referred to as life unworthy of

life.148 So euthanasia can be seen as a system of erosion of the weak and the vulnerable,

as they might not have anything to live for considering the injustices under which they live.

The doctor-patient relationship and euthanasia

According to the Hippocratic oath that is taken by the doctor that they vow to preserve life

and alleviate pain and suffering,149 if there is anything in contravention to this it will damage

this doctor-patient relationship of trust. The doctor’s mandate is to protect and preserve

life, and alleviate suffering by ending life has never been part of the medical professional

code.150 Thus, legalising euthanasia will change this dynamic in that the most vulnerable

groups might be easily influenced by the doctor to end their life because of this trust,

making them susceptible to abuse and foul play. It is very difficult to predict the long-term

ramifications of legalising euthanasia on the doctor-patient relationship but it a concern

nonetheless.

Hippocratic Oath

144 Lourens Botha Grove op cit note 56 page 87.145 Ibid.146 D L Clarke & A Egan ‘Euthanasia- Is there a case’ (2009) Vol. 2, No. 1 SAJBL page 25.147 Ibid.148 Ibid. 149 Ibid.150 Ibid page 26.

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According to Labuschagne euthanasia is in conflict with the Hippocratic Oath, that people’s

faith in the medical profession will be scarred by people seeing medical practitioners as

executioners. Conversely, Labuschagne states that Hippocratic Oath can be interpreted

progressively and not exactly as when it came into being meaning a doctor’s duty is not

merely to cure, but also to eliminate suffering.

Religious and moral views of euthanasia

To begin, the religious view is for the most part connected to moral views as it often

dictates a person’s choice and their moral compass.151 Which speaks to the question of

autonomy and which some might say that a person’s autonomy in this instance is

convoluted because of an external source such as religion. This confusion with this view is

that South Africa is generally a pleuritic society in which there are various religions and

cultures,152 that of which must be equally respected. For instances in terms of Christian

religion, the belief is that God is the creator of life and no other person including yourself

has the right to take away life except God. Also with the Muslim religion according to the

Quran in 42:26 in which life and death are in the control of Allah. Thus, for whatever

reason no one has the right to function in that domain as pain as purpose.153

Sanctity of life argument

Another assertion made in this regard is the societal view that is based on the sanctity of

life.154 Jonathan Burchell mentioned the courts have consistently conveyed its interest in

the sanctity of life and the State’s interest in preservation of life.155 But also says that it is

rather puzzling because it appears to be both ethically and legally acceptable for a medical

practitioner to administer drugs or other medicines intended to alleviate pain to a

151 De Kock Op cit note 10 at page 41.152 Stransham-Ford Supra note 2 at para 20.153 Antoinette Muvhango Ouma Lukhaimane Op cit note 65 page 35.154 Ibid at para 20.155 Burchell Jonathan Principles of criminal law (2005) page 50.

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terminally-ill person, even if in the process the death of the patient is hastened.156 In

Agliotti there is a belief that this would blur the lines leaning towards legalizing murder.157

An ideal that has the intention of protecting the helpless and weak.158 So, in the context of

South Africa where the ideal has been continually contravened from past social ills.159 It is

believed that it is going too far to try and engineer both life and death and that this should

be avoided at all costs.160 Burchell submits that societal attitudes to death and dying are

not static and points out with reference to the Hurst case that it is “certainly arguable that a

person who is in a persistent vegetative state should be permitted to die with dignity.”161

The sanctity of life view now leads us to whether this should be an absolute right extending

towards the medical profession. Labuschagne in his article titled “Dekriminalisie van

eutanasie” (decriminalisation of euthanasia). He explored on the idea euthanasia will lead

to erosion of medic ethics as the public will lose confidence in the medical profession and

this will negatively impact on the patient.162 Another point is that there is a possibility that

medical practitioners can give incorrect diagnoses and prognosis.163 Labuschagne admits

that this risk cannot be completely eliminated, but argues that human fallacy is found in

everything we do and to remember this only when dealing with voluntary euthanasia is

arbitrary.164 As a means to reduce the risk, most suggestions for the legalization of

euthanasia includes provisions to the effect that a second medical practitioner, often a

specialist, must confirm the first medical practitioner’s conclusions before any euthanasia

may be performed patient’s consent.

VI. Arguments for the notion of euthanasia

156 Ibid.157 Op cit note 90.158 Ibid.159 Ibid.160 Ibid.161 Burchell Op cit note 146 at page 159.162 Labuschagne "Beëindiging van mediese behandeling en toestemmingsonbekwames" 1995 Obiter Page

187163 Ibid page 188.164 Ibid.

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In terms of the doctor-patient relationship, the above argument is not plausible because if

legalising active euthanasia is going to destroy the patient-doctor relationship then one

should question why are patient’s not questioning passive euthanasia. It is a reality that

public hospitals do not have sufficient resources. Who is to not question whether a patient

e.g. who is a comma is not being injected lethal medication. Even the more reason why

euthanasia as a whole should be legalised and strictly regulated. Conversely so, one can

look at the intention, if the intention is to alleviate pain and suffering, then the act which is

good in of itself should not be morally and legally reprehensible.

The right to die should be accommodated. As stated a right that is not explicitly mentioned

in the Constitution will be given effect if it is related to the dignity, which is the case for the

right to die.165 The terminally ill patient is at liberty to refuse treatment if they view the

treatment to be non-progressive. This self-determination which already exists should be

allowed actively when one’s quality of life is such that they cannot be a bearer of other

fundamental rights.166 It would be advisable to make an advanced directive while they are

competent. Although South Africa does not have a Living Will statute yet, people who are

members of the South African Living Will Society, have signed such a will which serves to

be persuasive expression of the patient's wishes where he/she is incompetent.167 The right

to life as it is a choice so should the right to die be, if it bring about pleasantness. This is

the idea that the rights to privacy and freedom of belief give a person the right to decide

how and when to die.168 Thus giving effect to quality of life over quality of life.

On the other hand in terms of the Libertarian argument.169 This is a variation of the

individual rights argument.170 If an action promotes the best interests of everyone

concerned and violates no one's rights then that action is and ought to be morally

165 http://www.bbc.co,uk/ethics/euthnansia/infavour_1.shtml written by BBC accessed 15 September 2016.166 Antoinette Muvhango Ouma Lukhaimane Op cit note 72 page 28.167 Ibid page 29.168 Ibid.169 BBC Op cit note 156.170 Ibid.

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acceptable.171 In some cases, euthanasia promotes the best interests of everyone involved

and violates no one's rights. It is therefore morally acceptable.172

Medical resources ae spread quite thinly in a country such as South Africa, being a third

world country. The health system is still on the verge of development and at times these

sparse resources are used up by people who have no prospect of recovery or

improvement. This is not to say that the saving of resources should trump life, but in the

event when it is unnecessary to use limited resources we should allow the terminally ill to

die in peace. The reality is that in many of these families not only is it an emotional turmoil

but attached to it is the financial difficulties after trying to keep someone alive only when a

certain diagnosis is made can someone be allowed to die in peace with dignity.

Finally, euthanasia happens anyway. Whether in the form of passive euthanasia when the

doctor does not intend for one to die, both in active and passive euthanasia will death

inevitably ensue. It is better to make it legal and regulate it properly. What lies behind it is

Utilitarianism: the belief that moral rules should be designed to produce the greatest

happiness of the greatest number of people. From a utilitarian viewpoint, justifying

euthanasia is a question of showing that allowing people to have a good death, at a time of

their own choosing, will make them happier than the pain from their illness, the loss of

dignity and the distress of anticipating a slow, painful death.173

VII. Conclusion

As can be seen from the above arguments, euthanasia can indeed be balanced so as to

not infringe on the fundamental rights and autonomy of the patient. In Stransham-Ford it

made it clear that whether the person lives or not, it is contingent upon the quality of life.

This perspective on euthanasia and the right to life is clear; people who wish to die in

dignity due to irreversible vegetative state or any other irreversible medical condition have

the right to life, but that right is limited by the interests of the patients The decision to die is

171 Ibid.172 Ibid.173 Ibid.

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a personal decision which must be respected, as this informs the autonomy that the

patient’s dignity and freedom and security over oneself is of paramount importance.

Leniency of a sentence on such compassionate acts is not enough, what is needed is the

legalization thereof, which makes it effective for this notion to function in a democratic

South Africa. It is understandable that there are plausible reasons why we should not

consider legally introducing the notion of euthanasia in the medical and personal space.

However, it is the inevitable that cannot be ignored and should not be ignored if it means

infringing important rights to satisfy the conscience and unorthodox. One must have a right

to exercise how one dies, especially when the quality of life detoriates, to the point to

which they cannot enjoy living. Deeper considerations by the legislature must be made,

taking into account the compass on which this case has given and the demographics of

South Africa. Finally, this is to serve that there must be circumstances in which it should be

permissible to end your life, when palliative care and other medical means have been

explored and exhausted, taking in cognisance no unjustifiable limitation on fundamental

rights.

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