Christian Lawyers Association of SA and Others v Minister of Health and Others

• Jurisdiction: South Africa
• Judge: Mccreath J
• Judgment Date: 10 July 1998
• Counsel: WH Trangove (with him J Kentridge and TM Masipa) for the excipients (defedants). E Bertelsmann (with him SSE Louw, KV Matthee, M Slabbert and AR Duminy for the respondents (plaintiffs).
• Hearing Date: 12 May 1998
• Court: Transvaal Provincial Division
• Docket Number: 16291/97

McCreath J:

The plaintiffs seek an order against the defendants declaring the Choice on Termination of Pregnancy Act 92 of 1996 ('the Act') to be unconstitutional and that it be struck down in its entirety. Paragraphs 12, 13, 14, 15, 16 and C 17 of the plaintiffs' particulars of claim read as follows:

'12.

The Act permits an abortion:

12.1

Upon the request of the mother during the first 12 weeks of the gestation period of her pregnancy; D

12.2

from the 13th up to and including the 20th week of the gestation period of the pregnancy if a medical practitioner, after consultation with the mother, is of the opinion that:

(i)

the continued pregnancy would pose a risk of injury to the mother's physical or mental health; or E

(ii)

there exists a substantial risk that the unborn child would suffer from severe physical or mental abnormality; or

(iii)

the pregnancy resulted from rape or incest; or

(iv)

the continued pregnancy would significantly affect the social or economic circumstances of the mother. F

12.3

After the 20th week of the gestation period, if a medical practitioner, after consultation with another medical practitioner or a registered midwife, is of the opinion that the continued pregnancy -

(i)

would endanger the mother's life; or

(ii)

would result in a severe malformation of the unborn child; or G

(iii)

would pose a risk of injury to the unborn child.

13.

The life of a human being starts at conception.

14.

Abortion terminates the life of a human being.

15. 15.1

In terms of s 11 of the Constitution of the Republic of South Africa Act 108 of 1996, everyone has the right to life. H

15.2

Section 11 applies to an unborn child.

15.3

Section 11 applies to an unborn child from the moment of the child's conception.

16.

The Act is in conflict with s 11 of the Constitution, in that it allows the termination of human life at any stage after conception and at any stage prior to the child's birth. I

17.

The Act is consequently unconstitutional and must be struck down.'

The defendants noted an exception to the plaintiffs' summons on the ground that the particulars of claim do not disclose a cause of action. In the notice of exception the following is alleged: J

McCreath J

'1.

A foetus is not a bearer of rights in terms of s 11 of the Constitution. A

2.

Section 11 of the Constitution does not preclude the termination of pregnancy in the circumstances and manner contemplated by the Act.

3.

The right of women to choose to have their pregnancy terminated in the circumstances and manner B contemplated by the Act, is protected under ss 9, 10, 11, 12, 14, 15(1) and 27(1)(a) of the Constitution.'

The defendants accordingly contend that the plaintiffs' claims should be dismissed.

At the hearing of the exception counsel for the plaintiffs argued as a preliminary point that the issues raised by the plaintiffs C cannot be decided without the hearing of evidence and that an exception is therefore inappropriate. It was argued that if there is a possibility that some evidence can be led to establish the plaintiffs' cause of action, an exception is inapposite (cf South African Defence and Aid Fund and Another v Minister of Justice 1967 (1) SA 31 (C) at 37G et seq). The D plaintiffs contend that evidence is admissible and available to establish that a foetus has rights in terms of s 11 of the Constitution of the Republic of South Africa Act 108 of 1996 ('the Constitution'), alternatively to prove that a foetus is entitled to protection under the Constitution generally. Counsel mentioned expert evidence on when the life of a human E being starts and the subsequent development of the foetus within the womb of a mother, as well as evidence on various aspects of reproduction, as examples of the testimony which the plaintiffs propose to adduce.

In my view, this argument overlooks the fundamental issue which this Court is called upon to decide in regard to the F plaintiffs' cause of action as formulated in the particulars of claim. It is apparent from subparas 15.1, 15.2 and 15.3 thereof that the plaintiffs rely solely on the provisions of s 11 of the Constitution to substantiate their cause of action. That section provides that 'everyone has the right to life'. A perusal of the Constitution indicates that the terms 'everyone' an G d 'every person' are used interchangeably. Thus, the bill of rights generally protects 'everyone', but frequently refers to the holders of those rights as 'people' or 'persons' - eg s 7(1), which enshrines the rights of all 'people'; s 38, which confers locus standi on 'everyone listed in this section' to approach the Court for relief under the bill of rights but goes on to H describe in the list 'the persons' who may do so.

It should be mentioned that in the interim Constitution (the predecessor to the Constitution) a general protection was afforded in the bill of rights forming part thereof to 'every person'. The change to the word 'everyone' was presumably to meet the requirement of Constitutional Principle II that 'everyone shall enjoy all universally accepted fundamental rights I , freedoms and civil liberties'. Be that as it may, this change across the board could never, in my judgment, have been intended to introduce a significant new class of rights-bearer. It is inconceivable that any new category could have been introduced by the Legislature in this obscure way. The Canadian Charter of Rights confers its protection onV J

McCreath J

'everyone', 'any person' and 'anyone'. Hogg Constitutional Law of Canada 3rd ed vol 2 para 34.1(b) says that 'it seems likely' that these various terms are synonymous for purposes of the relevant sections of the Canadian Charter. There can be no doubt in my mind that, as far as the Republic of South Africa is concerned, the terms 'every person' and 'everyone', as used in the Constitution (and more particularly in s 11 thereof) are synonymous. Counsel for the plaintiff BsV did not suggest otherwise.

The plaintiffs' cause of action, founded, as it is, solely on s 11 of the Constitution, is therefore dependent for its validity on the question whether 'everyone' or 'every person' applies to an unborn child 'from the moment of the child's conception'. C The answer hereto does not depend on medical or scientific evidence as to when the life of a human being commences and the subsequent development of the foetus up to date of birth. Nor is it the function of this Court to decide the issue on religious or philosophical grounds. The issue is a legal one to be decided on the proper legal interpretation to be given to s D 11. I am in agreement with the dictum of the Canadian Supreme Court in Tremblay v Daigle (1989) 62 DLR (4th) 634 (SC) at 650a--c, where the following is said:

'The respondent's argument is that a foetus is an ''etre humain'', in English ''human being'', and therefore has a right to life and a right to assistance when its life is in peril. In examining this argument it should be emphasised at the outset that the argument E must be viewed in the context of the legislation in question. The Court is not required to enter the philosophical and theological debates about whether or not a foetus is a person but, rather, to answer the legal question of whether the Quebec Legislature has accorded the foetus personhood. Metaphysical arguments may be relevant but they are not the primary focus of enquiry. Nor are F scientific arguments about the biological status of a foetus determinative in our enquiry. The task of properly classifying a foetus in law and in science are different pursuits. Ascribing personhood to a foetus in law is a fundamentally normative task. It results in the recognition of rights and duties - a matter which falls outside the concerns of scientific classification. In short, this Court's task is a legal one.'

Counsel for the plaintiffs also argued that in the interpretation of a constitution it is permissible to lead evidence of the G legislative history and the circumstances existing at the time such constitution was adopted in order to arrive at the correct interpretation thereof. The general rule is that evidence of surrounding circumstances in order to interpret a statute is not permissible. In this respect Steyn JA said the following in Consolidated Diamond Mines of South West Africa Ltd v H Administrator, SWA and Another 1958 (4) SA 572 (A) at 657H--658A:

'To the extent to which the interpretation of a statute should be based upon surrounding circumstances requiring evidential proof, it would be an interpretation which could operate inter partes only. If the leading of evidence were to be admissible, no other person, I when affected by the statute, could be denied the right to bring other evidence proving other surrounding circumstances or disproving those accepted in a previous case; and in every case the evidence, unless the parties are in agreement as to its effect, would have to be led anew. The result would be that the interpretation of the same provision in an enactment may for good reason differ from case to case. The uncertainty and confusion which would arise from that, needs no elaboration. I consider, J

McCreath J

therefore, that generally speaking such evidential proof would not be admissible.' A

An exception to this general rule is where...