Minister of Justice and Others v Estate Stransham-Ford

• Jurisdiction: South Africa
• Judge: Lewis JA, Seriti JA, Wallis JA, Dambuza JA and Schippers AJA
• Judgment Date: 06 December 2016
• Citation: 2017 (3) SA 152 (SCA)
• Docket Number: 531/2015 [2016] ZASCA 197
• Hearing Date: 06 December 2016
• Counsel: L Nkosi-Thomas SC (with S Poswa-Lenotholi and N Mgcina) for the first to third appellants, the Ministers of Justice and Health, and the National Director of Public Prosecutions.CH van Bergen (with AJ D'Oliviera) for the fourth appellant, the Health Professions Council of South Africa. HB Marais SC (with HP van Nieuwenhuizen and CA du Plessis) for the respondent, the estate of Mr Stransham-Ford. RS Willis (with T Mafukidze and A Schluep) for the first amicus curiae, Doctors for Life International NPC. D Jordaan, the second amicus curiae, in person. MJ Engelbrecht (with A Montzinger) for the third amicus curiae, Cause for Justice. NH Maenetje SC (with G Snyman) for the fourth amicus curiae, the Centre for Applied Legal Studies. D Cooke for the fifth amicus curiae, Justice Alliance of South Africa.
• Court: Supreme Court of Appeal

Wallis JA (Lewis JA, Seriti JA, Dambuza JA and Schippers AJA concurring):

[1] 'There's nothing certain in a man's life except this: That he must lose G 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 H 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

Wallis JA

A 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 B now asks whether the brain stem 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 C 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). D 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 E 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 F 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 G 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 H 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, I sourced in the Bill of Rights under the Constitution.

Wallis JA

[4] In circumstances that will be explored later in this judgment, A Fabricius J heard the application as a matter of urgency on 29 April 2015. On 30 April 2015 he granted the following order:

'1.

IT IS DECLARED THAT:

1.1

The Applicant is a mentally competent adult;

1.2

The Applicant has freely and voluntarily, and without undue B influence requested the Court to authorise that he be assisted in an act of suicide;

1.3

The Applicant is terminally ill and suffering intractably and has a severely curtailed life expectancy of some weeks only;

1.4

The Applicant is entitled to be assisted by a qualified medical doctor, who is willing to do so, to end his life, either by administration of a lethal agent or by providing the Applicant C with the necessary lethal agent to administer himself;

1.5

No medical doctor is obliged to accede to the request of the Applicant;

1.6

The medical doctor who accedes to the request of the Applicant shall not be acting unlawfully, and hence, shall not D be subject to prosecution by the Fourth Respondent or subject to disciplinary proceedings by the Third Respondent for assisting the Applicant.

2.

This order shall not be read as endorsing the proposals of the draft Bill on End of Life as contained in the Law Commission Report of November 1998 (Project 86) as laying down the necessary or only E conditions for the entitlement to the assistance of a qualified medical doctor to commit suicide.

3.

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, (s 10) and freedom F to bodily and psychological integrity (s 12(2)(b), read with s 1 and 7), and to that extent are declared to be overbroad and in conflict with the said provisions of the Bill of Rights.

4.

Except as stipulated above, the common law crimes of murder and culpable homicide in the context of assisted suicide by medical practitioners are not affected.' G

On 4 May 2015 Fabricius J handed down his reasons for making that order [5] and on 2 June 2015 he granted leave to appeal to this court. The estate of Mr Stransham-Ford (the estate) has resisted the appeal on the basis that it was entitled to step into his shoes for that purpose.

[5] The appeal must succeed and the order granted by Fabricius J must H be set aside for three interrelated reasons. Firstly, Mr Stransham-Ford had died on the morning of 30 April 2015 two hours before an order was made. [6] 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

Wallis JA

A 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 B development of the common law. [7] 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 C and culpable homicide.

Background and litigation history

[6] Robert Stransham-Ford was an advocate. On 19 February 2013 a prostate biopsy confirmed the presence of adenocarcinoma. The cancer D was aggressive and by January 2015 had spread to lymph glands elsewhere in his body. On 13 March 2015 an ultrasound biopsy confirmed the presence of lymphoma. On 15 March 2015 he was admitted to Victoria Hospital in Cape Town suffering from severe abdominal pain. On 18 March 2015 at Groote Schuur Hospital an attempt was made to insert stents in the ureters leading from his kidneys E to his bladder in an endeavour to relieve the obstruction. On 25 March 2015 Dr Cameron Bruce took over his care and was the doctor who cared for him until his death. Mr Stransham-Ford was at this time resident in Cape Town with his former wife and daughter, where he remained until his death. His former wife and his administrative assistant F from his legal practice provided his daily care. From 25 March 2015 Dr Bruce attended upon Mr Stransham-Ford at his former wife's home on nine occasions. In addition a palliative-care nurse, Sister Yvonne Jackman from St Luke's Hospice, visited Mr Stransham-Ford on a regular basis. As already mentioned he died on 30 May 2015 at G about 8h00. [8]

[7] The application was launched on 17 April 2015 (a Friday) as an urgent application with foreshortened periods, requiring the respondents to deliver answering affidavits by Wednesday 22 April 2015, and selecting 28 April 2015 as the date for hearing. [9] The Minister of Justice and Correctional Services (the Minister), the Minister of Health, the H National Director of Public Prosecutions and the Health Professions

Wallis JA

Council of South Africa (HPCSA) were cited as respondents. The Minister A delivered an answering affidavit deposed to by the Acting Chief Director: Legal Services and the HPCSA delivered an answering affidavit by the chairperson of its Medical and Dental Professional Board, Dr Letitia Moja. These were dated 24 April 2015 (a Friday). Mr Stransham-Ford replied on Sunday, 26 April 2015.

[8] The order sought by Mr Stransham-Ford read as follows: B

'1.

Declaring that the Applicant may request a medical practitioner registered as such in terms of the Health Professions Act 56 of 1974 (the medical practitioner), to end his life or to enable the Applicant to end his life by the administration or provision of some...