The SCA allowed the appeal and set aside the order of Fabricius J in the high court.  An advocate suffering in the terminal stages of cancer applied  for an order to allow a medical practitioner to administer a lethal agent at his request, or provide him with a lethal agent that he could administer himself.  He died before the high court granted the order which meant that his claim ceased to exist.  The high court should have recalled its order.  The law in relation to physician administered euthanasia (PAE) and physician assisted suicide (PAS) considered in detail.  Decided that this was not an appropriate case in which to develop the common law of murder and culpable homicide.

Minister of Justice and Correctional Services v Estate Late James Stransham-Ford (531/2015) [2016] ZASCA 197 (6 December 2016) per Wallis JA (Lewis, Seriti and Dambuza JJA and Schippers AJA concurring)

Excerpts without footnotes

[1]   ‘There’s nothing certain in a man’s life except this: That he must lose it.’[1] Death draws the final curtain on all our lives. How that occurs, and the manner in which we should approach death, has provided grist to the mill of philosophers, poets, politicians, social commentators and comedians down the ages and it is doubtful that any conclusion common to all humankind will ever be reached.  Whether we think Socrates was correct to say that ‘death may be the greatest of all human blessings’,[2] or that Dylan Thomas was right to urge us, when faced with death, to ‘rage, rage against the dying of the light’,[3] is a matter of personal philosophy and morality on which views diverge and always will.  The law injects itself into this debate largely as a result of the enormous strides modern medicine has made in its ability to prolong life and postpone death.  This has changed our understanding of death itself.  It can no longer be viewed as simply the cessation of the heart beating and the lungs breathing, because these can be maintained artificially, so the medical profession now asks whether the brainstem is dead in the sense of showing no activity.[4] Welcome though these advances of medical science are in most circumstances, in some they can lead to the process of dying being protracted, painful and burdensome.

[2]   These developments have generated a debate in various societies around the world, whether it is permissible for persons so burdened to be assisted to bring their lives to an end.  More narrowly, it is whether they can invoke the assistance of medical practitioners to this end.  One possibility is that the patient should be permitted to obtain a prescription for lethal drugs that they may use to terminate their own lives.  This is commonly referred to as physician assisted suicide (PAS).  The other possibility is that the medical practitioner should be permitted at their request to administer such lethal drugs to them.  This is referred to as voluntary euthanasia or physician administered euthanasia (PAE).  I use the expressions PAS and PAE in this judgment specifically to refer to the conduct described above and nothing else.  They are to be distinguished from the refusal or withdrawal of treatment or life support or other conduct that is lawful in South Africa, but which in certain jurisdictions is regarded as passive euthanasia and may be illegal.  In doing so I am aware that there are those who regard these distinctions as sophistry and treat virtually any action, ranging from refusal of treatment by the patient to the administration of lethal drugs by a physician, as different manifestations of euthanasia.

[3]   Legal issues arise because such actions by medical practitioners have long been treated in various different societies as criminal. The intended purpose of this litigation was to determine whether that should be the case in South Africa.  Its ostensible subject was Mr Robert (commonly known and referred to as Robin) Stransham-Ford, who was dying of cancer.  He approached the High Court of South Africa, Gauteng Division, Pretoria claiming an order that a medical practitioner could either end his life by administering a lethal substance, or provide him with the lethal substance to enable him to administer it himself, and that in either event such medical practitioner would not be subject to prosecution or disciplinary steps by the relevant professional body.  To that end he sought an order that the common law in relation to the crimes of murder and culpable homicide should be developed in terms of s 39(2) of the Constitution.  He claimed this relief as a matter of right, sourced in the Bill of Rights under the Constitution.

. . . . .

[5]   The appeal must succeed and the order granted by Fabricius J must be set aside for three inter-related reasons.

Firstly, Mr Stransham-Ford had died on the morning of 30 April 2015 two hours before an order was made.[1] As a result his cause of action ceased to exist and no order should have been made thereon.  His death did not result in a claim passing to his estate and the estate had no interest in further pursuing this litigation or any locus standi to do so.

Secondly, there was no full and proper examination of the present state of our law in this difficult area, in the light of authority, both local and international, and the constitutional injunctions in relation to the interpretation of the Bill of Rights and the development of the common law.[2]

Thirdly, the order was made on an incorrect and restricted factual basis, without complying with the Uniform Rules of Court and without affording all interested parties a proper opportunity to be heard.  Viewed overall, the circumstances of the case were such that it was inappropriate for the court below to engage in a reconsideration of the common law in relation to the crimes of murder and culpable homicide.

. . . . .

[21]   I have given consideration to whether the fact that the arguments advanced on behalf of Mr Stransham-Ford engaged constitutional issues detracts from these principles.  In my view they do not.  Constitutional issues, as much as issues in any other litigation, only arise for decision where, on the facts of a particular case, it is necessary to decide the constitutional issue.  Dealing with the situation where events subsequent to the commencement of litigation resulted in there no longer being an issue for determination, Ackermann J said in National Coalition for Gay and Lesbian Equality & others v Minister of Home Affairs & others:[1]

‘A case is moot and therefore not justiciable if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law.’

At the time that Fabricius J delivered his judgment there was no longer an existing controversy for him to pronounce upon.  The case was no longer justiciable.

[22]   Since the advent of an enforceable Bill of Rights, many test cases have been brought with a view to establishing some broader principle. But none have been brought in circumstances where the cause of action advanced had been extinguished before judgment at first instance.  There have been cases in which, after judgment at first instance, circumstances have altered so that the judgment has become moot.  There the Constitutional Court has reserved to itself a discretion, if it is in the interests of justice to do so, to consider and determine matters even though they have become moot.[2] It is a prerequisite for the exercise of the discretion that any order the court may ultimately make will have some practical effect either on the parties or on others.  Other factors that may be relevant will include the nature and extent of the practical effect that any possible order might have, the importance of the issue, its complexity and the fullness or otherwise of the argument.[3]

. . . . .

[27]   For those reasons alone therefore the order made by Fabricius J must be set aside. But that leaves the dilemma that it is a reasoned and reported judgment by the high court and if this court does not at least to some extent, address the merits it may be taken as having some precedential effect.  That is of particular concern in the present case, as it has already been treated as reflecting the South African legal position by a court in New Zealand.[1] This compels us to deal with the merits insofar as necessary in order to dispel that view.  In doing so I adopt the same course as did the Constitutional Court in Director of Public Prosecutions, Transvaal v Minister of Justice and Correctional Services,[2] a case where the high court had incorrectly entered upon the question of the constitutional validity of certain provisions of the Criminal Procedure Act 51 of 1977 dealing with child witnesses.  It did so and made a declaration of constitutional invalidity in respect of those provisions.  Notwithstanding that its orders fell to be set aside for that reason alone, the Constitutional Court dealt with the issue of constitutional invalidity and held that the impugned provisions were constitutionally compliant.  Inasmuch as I have concluded that, on both its exposition of the law and on the facts, the high court should not have made the order it did, I deal with the merits to the extent necessary to explain why that was so, both legally and factually.

. . . . .

South African law examined

[28]   The high court assumed that our law in this delicate area is both clear and simple. It said the following in para 10 of the judgment:

‘The current legal position is that assisted suicide or active voluntary euthanasia is unlawful.  See: S v De Bellocq 1975 (3) SA 538 (T) at 539 d; and S v Marengo 1991 (2) SACR 43 (W) 47 A – B; and Ex parte Minister van Justisie: In re S v Grotjohn 1970 (2) SA 355 A.’


[29]   That statement, which was assumed to be correct in the arguments addressed to us on behalf of the various parties and amici, was not only not supported by the authorities relied upon, but was a wholly inadequate analysis of the relevant law in this area.  Two of the cited cases did not deal with either voluntary euthanasia or assisted suicide and the third, which dealt with encouraging and facilitating suicide, was concerned with a domestic situation far removed from the matters with which we are concerned.  A brief exposition of the current state of our law in this area is called for.

Suicide and the refusal or termination of medical treatment

[30]   Suicide is commonly understood as being the act of a person in intentionally bringing about their own death. Neither suicide nor attempted suicide is a crime in South Africa.[1] Accordingly the conduct that Mr Stransham-Ford contemplated would not have involved him in any criminal activity So the focus of the enquiry was not on his entitlement to commit suicide, or what is sometimes called the right to die, but on a right to select a method of doing so that was acceptable to him.

[31]   A person may refuse treatment that would otherwise prolong life.  This is an aspect of personal autonomy that is constitutionally protected and would not ordinarily be regarded as suicide.  Medical treatment without the patient’s consent is regarded as an assault so that the patient is always entitled to refuse medical treatment.[2] In refusing treatment the patient is allowing the natural processes of their disease to take their course.  It was rightly said in Re Conroy[3] that:

‘… declining life-sustaining medical treatment may not properly be viewed as an attempt to commit suicide.  Refusing medical intervention merely allows the disease to take its natural course; if death were eventually to occur, it would be the result, primarily, of the underlying disease, and not the result of self-inflicted injury.’

This approach applies to invasive surgery, the administration of drugs or therapies and the use of machines such as respirators.  It also applies to artificial feeding, so that a person who can only be kept alive by such means may bring about their death by refusing to accept nutrition and hydration.[4] These principles of law are recognised in the right to dignity given by section 10 of the Constitution and the right to bodily integrity given by s 12(2)(b) of the Constitution.

[32]   The only qualification to what appears in the preceding paragraph is that the patient must have the mental and legal capacity to make that decision. This gives rise to problems where a person suffers a catastrophic injury without any prior expression of their views, or is afflicted with a mental handicap that limits their legal capacity or where, as with a child, they lack legal capacity.[5] It is in circumstances such as these that courts may be called upon, usually by family members or the medical authorities, to make decisions as to the legitimacy of the withdrawal of medical treatment or artificial nutrition and hydration.  That is what occurred in South Africa in Clarke v Hurst NO,[6] in the United Kingdom in Bland,[7] and in the United States in Cruzan[8] and Quinlan.[9] In each of these cases the patient was in a persistent vegetative state and the court authorised the cessation of artificial means of keeping them alive, including the removal of artificial nutrition and hydration.  In New Zealand, in Auckland Area Health Board,[10] the patient, Mr L, suffered from an extreme form of Guillain-Barré syndrome that left him with some brain function, but no connection between his brain and the rest of his body, so that he was wholly dependent on an artificial respirator to breathe and unaware of his surroundings, although not clinically brain dead.  The court issued a declaratory order that the removal of artificial ventilatory support would not contravene the relevant provisions of the Crimes Act and would not constitute culpable homicide.  The justifications advanced by different courts for making such orders vary from jurisdiction to jurisdiction and range from a concept of substituted consent to the best interests of the patient, but it is unnecessary to examine that in greater detail now.

[33]   In circumstances such as those described in the previous paragraph a doctor in South Africa does not commit a criminal offence by ceasing treatment or other forms of medical intervention that serve neither a therapeutic nor a palliative purpose. The decision in those situations is in the ordinary case a decision to be made by the medical practitioner in conjunction with family and any other persons having a responsibility for the patient.  Where there is uncertainty, or a difference of views, it may be desirable for a declaratory order to be sought from a court as to the consequences of a particular course of treatment as occurred in Clarke v Hurst NO.

[34]   Furthermore a medical practitioner commits no offence by prescribing drugs by way of palliative treatment for pain that the doctor knows will have the effect of hastening the patient’s death. This is referred to as the ‘double effect’, where the drugs serve the purpose for which they were prescribed, but have potentially detrimental side effects.  It was accepted as the correct position in our law in Clarke v Hurst NO, [11] citing Devlin J’s charge to the jury in R v Adams:[12]

‘If the first purpose of medicine, the restoration of health, can no longer be achieved, there is still much for a doctor to do, and he is entitled to do all that is proper and necessary to relieve pain and suffering, even if measures he takes may incidentally shorten life.’ (My emphasis.)

[35]   It is apparent from this necessarily brief summary that, within the current relatively certain framework of the law, there are many steps available to both individuals facing the type of intolerable situation described above and to the medical practitioners responsible for their care that will not result in interminable, purposeless treatment or the preservation of life as a purely mechanical process artificially maintained. In addition the evidence now before us, which was not before the high court, shows that there have been considerable advances in recent times in palliative care, both in terms of training medical practitioners in palliative treatment and in the provision of care through the hospice movement, that may serve to alleviate the suffering that would otherwise attend the final stages of terminal illnesses.  This emerges from the affidavits of Dr David Cameron and Dr Claire Blanchard, both specialists in this field, tendered by the HPCSA and from those of Dr Gwyther and Baroness Finlay, also experts in palliative care, tendered by the Minister.  None of this evidence was challenged.  It appears from it that the spectre commonly conjured up of a helpless patient confined to a hospital bed and attached to an array of machinery is, in the vast majority of end of life situations, not what occurs, even with patients suffering from extremely grave diseases.  It did not apply to Mr Stransham-Ford.

. . . . .

Assisted suicide (PAS)

[42]   Mr Stransham-Ford sought in the alternative an order that a medical practitioner be authorised to enable him to terminate his own life by providing him with an appropriate lethal agent that he could administer himself in order to terminate his life. Although not mentioned in the affidavits, which speak only of Mr Stransham-Ford wishing to avoid dying in circumstances he regarded as infringing on his right to dignity, the reality is that he said that he wished to be able to commit suicide in a manner and at a time of his own choosing, no doubt because he believed that this would be simpler, less painful and distressing and more certain of being efficacious than any other means open to him.  As pointed out in para 30 above his act in committing, or attempting to commit, suicide would attract no criminal consequences for him.  Any criminal liability would attach to the medical practitioner who prescribed the means whereby he could commit suicide.

. . . . .


[57]   The discussion in paras 36 to 56 above demonstrates that the authorities did not support the simple proposition on which the court below based its judgment and on which the arguments before it and in this court were based.[1] Instead the matter was dealt with and has been argued before us on a hypothesis as to the existing state of the law that is unjustifiable.  It is on that basis that it was argued that the inability of persons such as Mr Stransham-Ford to have access to PAS infringed their constitutional rights.  On the law that question was not reached in this case.  On the facts the erroneous approach to the law rendered it impossible to consider whether any limitation of a constitutional right was reasonable and justifiable in terms of s 36 of the Constitution.  The approach adopted was unsuited to the consideration of the complex legal issues that arise in the context of these debates about the manner and means of dying.

. . . . .

PAS and constitutionally protected rights

[62]   There is no international unanimity as to the effect of guaranteed human rights on either PAE or PAS and the task is rendered more difficult by the lack of commonality in the rights being guaranteed. No constitutional instrument embodies a right to commit suicide or to determine the time and manner of one’s death or to have assistance in hastening the arrival of death.  Any such right must then be distilled from other constitutionally protected rights.  Various rights have been invoked to that end.

. . . . .

[67]   Two other constitutional points bear mention. The first is that even where courts have held that constitutional rights were engaged or infringed, in only three cases, Carter and the lower courts in Baxter and Morris v Brandenburg, have they held that this infringement was not justified.  The reason for this in Carter was that the criminal prohibition on aiding and abetting suicide was held to be overbroad.[1] It was held not to be justified, because the Supreme Court accepted a factual finding by the trial court that, in the situation prevailing in Canada, it was practicable to put in place measures that would have permitted PAD while safeguarding vulnerable people against coercion or any form of inducement to ask for PAD.[2] Against that the European Court of Human Rights has consistently held that this is a matter within the margin of appreciation of member countries, and the Supreme Court in Nicklinson[3] held that Parliament had considered the prohibition on assisted suicide on a number of occasions and maintained the prohibition and that the matter was more appropriately one for regulation by Parliament.

Development of the common law in South Africa

[68]   The high court was expressly asked to resolve the issue of PAE and PAS by developing the common law of murder and culpable homicide. Its order purported to do this, while confining the development to Mr Stransham-Ford.  That created an internal incoherence in the court’s order.  The common law is the law applicable to all in South Africa.  There is no principle of the common law, nor any founded in the Constitution, that permits the law to be developed for an individual, but not for the rest of society.  That is to give someone – in this case Mr Stransham-Ford and any doctor who assisted him – an exemption from applicable criminal law and from professional obligations.  No court may do that.

. . . . .

[71]   The next question that was not considered by the high court was the issue of justification in terms of s 36 of the Constitution. All the foreign jurisprudence to which I have referred makes it clear that the state has a legitimate interest in imposing constraints on the application of PAE, PAS and other forms of aiding and abetting suicide.  The facts of Grotjohn, Hibbert and Robinson illuminate why that is also necessary in South Africa.  Some constraint is plainly reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.  The question is what? And that requires a court to consider the nature of any right that is infringed by the present state of the law; the importance and purpose of the limitation; its nature and extent; the relation between the limitation and its purpose and less restrictive means to achieve that purpose.

[72]   In considering that last issue, it should be borne in mind that it was only on the question of overbreadth that the Supreme Court of Canada held in Carter that the criminalisation of aiding and abetting suicide unjustifiably infringed a protected right. Whether a South African court faced with the same issue would arrive at the same conclusion would need to be determined in the light of the very different circumstances in this country; the availability of medical care and especially palliative care; the wide diversity of our society in its cultures and belief systems; our sense of the need to protect the poor, the weak and the vulnerable and the value attached to providing such protection.  The high court’s too ready adoption of the reasoning in Carter ignored the very different context in which that case was decided.

[73]   Lastly, a consideration and determination of these issues without any live dispute existing would raise the issue of remedy. Would the appropriate remedy be declaratory? Should there be a development of the common law crimes of murder and culpable homicide and if so to what extent and how should that be defined? Assuming the basis for any judgment was a finding that a constitutionally protected right had been infringed, would the more appropriate remedy be that adopted by the Canadian Supreme Court of a declaration of incompatibility joined with a suspension of the order to enable parliament to remedy the deficiency? That would be an extremely important possibility bearing in mind that on issues of this nature, raising complex questions of the public interest, the nature of any regulations that should attach to permitted PAE or PAS and the supervisory regime that should accompany any relaxation of the law, the legislature is the proper engine for legal development.[1] Had Mr Stransham-Ford still been alive the court could have joined that with a limited constitutional exemption as was done in the court of first instance in Carter and in the minority judgments in Rodriguez.

. . . . .

[94]   It is utterly unsatisfactory for any court to be requested to determine issues of fundamental importance on this basis. As the Constitutional Court has pointed out in the context of mootness what will sway the court in deciding whether to hear the case is ‘the importance of the issue, its complexity and the fullness or otherwise of the argument’.[1] I would add that a material factor should be whether the record is appropriately complete to enable the court to arrive at a properly reasoned conclusion.  This court made a similar point in a case where the parties sought to argue fundamental constitutional issues on a stated case that failed adequately to state the facts relevant to the point in issue.[2]

. . . . .

[98]   Finally under this head I mention one further concern. South Africa is a very different country facing very different challenges from countries such as Canada, Switzerland, the Netherlands, Belgium and Luxembourg, and states such as Oregon, Washington, California, Vermont and Colorado in the United States.  Those countries and states have sophisticated health care systems and extensive palliative care networks.  Comparatively speaking they are wealthy.  South Africa is not.  Our health care system faces significant challenges dealing with everyday cases.  Voluntary organisations and private medical practitioners largely provide palliative care.  It is not widely available to the majority of people.  Regulatory enforcement in many fields is under pressure or completely lacking.  Our population is diverse and there are substantial disparities of wealth and resources.  Before a court could be satisfied that the acknowledged risks attendant upon permitting PAE or PAS could be guarded against by way of regulation, as is the case in other countries, it would need to be satisfied that a proper regulatory framework was, or could be put, in place and that the framework would not be a pious hope designed in a bureaucrat or idealist’s office, but one the functional operations of which had been tested and not found wanting.

. . . . .


[101]   I said in para 5 above that the appeal had to succeed for three inter-related reasons. Each taken separately would in my view suffice to reach that conclusion.  When they are taken cumulatively they demonstrate unequivocally in my view that the high court was wrong to make the order that it did.  It was wrong to hold that the common law crimes of murder and culpable homicide needed to be or should be developed to accommodate PAE and PAS.  South African law in that regard is as set out in paras 28 to 56 above.  When an appropriate case comes before our courts the common law will no doubt evolve in the light of the considerations outlined there and the developments in other countries.  It is of course possible that Parliament will, as has occurred in other countries, intervene and pass legislation on the topic.  That would be welcome if only because it would give effect to the proper role of Parliament in a society where the doctrine of the separation of powers has application.  Lobby groups could then make their voices heard and a proper debate and process of reflection could occur.  In general, whilst recognising the role that the Constitution confers upon the courts, it is desirable in my opinion that issues engaging profound moral questions beyond the remit of judges to determine, should be decided by the representatives of the people of the country as a whole.

[102]   In saying that, I agree with the views of Lord Sumption in para 233 of Nicklinson, where he said the following in regard to the proper role of Parliament in issues of this type:

‘In the course of argument, it was suggested that the case for the Respondents in the Nicklinson appeal required the Appellants to suffer a painful and degrading death for the sake of others.   This is a forensic point, but up to a point it is a legitimate one.   It is fair to confront any judge, or indeed legislator, with the moral consequences of his decision.   The problem about this submission, however, is that there are many moral consequences of this decision, not all of them pointing in the same direction.  For my part, I would accept a less tendentious formulation.   In my view, if we were to hold that the pain and degradation likely to be suffered by Mr Lamb and actually suffered by Mr Nicklinson made section 2 of the Suicide Act incompatible with the Convention, then we would have to accept the real possibility that might give insufficient protection to the generality of vulnerable people approaching the end of their lives.   I conclude that those propositions should be rejected, and the question left to the legislature.   In my opinion, the legislature could rationally conclude that a blanket ban on assisted suicide was “necessary” in Convention terms, i.e.  that it responded to a pressing social need.  I express no final view of my own.  I merely say that the social and moral dimensions of the issue, its inherent difficulty, and the fact that there is much to be said on both sides make Parliament the proper organ to deciding it.   If it were possible to say that Parliament had abdicated the task of addressing the question at all, so that none of the constitutional organs of the state had determined where the United Kingdom stood on the question, other considerations might at least arguably arise.  As matter stand, I think it clear that Parliament has determined that for the time being the law should remain as it is.’