Judge Hans Fabricius on Monday refused an application by the government and the Health Professions Council to rescind his order, saying it concerned a matter of public interest and could affect more people than just Robin Stransham-Ford.
He was of the view that the Constitutional Court and Parliament should reconsider the issue of legalising assisted suicide.
Lesego Montsho-Moloisane SC, counsel for the ministers of justice and health and the National Prosecuting Authority, argued that Stransham-Ford had already died when the order was granted, which made the court order moot.
‘His death brought an end to all his rights’
She said it was not a class action, but an application brought by a single applicant who never heard the ruling: “The applicant ceased to exist. His right to life automatically came to an end with his death. His death brought to an end all rights he had.”
Fabricius said his order did not prohibit others who sought the right to commit assisted suicide from coming to court.
“Previously there was no cause of action in terms of our law because it was prohibited under the common law.
“Now a cause of action has been established and it is forward looking. It’s for the Constitutional Court to decide if it has become moot because the applicant died,” he said. “I could not have made an order at all if I did not develop a cause of action. Once that was established, the cause of action obviously affects other parties. It is in the public interest and in the interest of justice.”
The judge last week granted an order not only allowing Stransham-Ford to ask a doctor to help him end his life, but also declaring that the doctor who did so would not be acting illegally.
In written reasons for his ruling, which was handed down on Monday, Fabricius said the absolute prohibition on assisted suicide in common law did not accord with the right to human dignity, freedom and security protected by the Constitution.
“The main argument [by the justice minister] was that the right to life was paramount and that life was sacrosanct. I agree with this general submission. The provision safeguards a person’s right vis-a-vis the state and society. It cannot mean that an individual is obliged to live, no matter what the quality of his life is.”
Fundamental human right
He supported the view of counsel for Stransham-Ford that it was a fundamental human right to be able to die with dignity and the SA Law Commission’s 1998 view that the sacredness of the quality of life should be accentuated rather than the sacredness of life per se.
“It is noticeable, unfortunate and disturbing that from a philosophical … and jurisprudential point of view … societies in various parts of the world acquiesce in thousands of deaths caused by weapons of mass destruction. They seem to even tolerate a horrendous murder rate in a number of countries, including ours. They seem to tolerate the yearly slaughter on our roads because, despite the statistics, thousands of people drive like lunatics on our roads every single day.
“People die of Aids, from malaria by the hundreds and thousands, from hunger, from malnutrition and impure water and insufficient medical facilities. The state says that it cannot afford to fulfil all socioeconomic demands, but it assumes the power to tell an educated individual of sound mind who is gravely ill and about to die, that he must suffer the indignity of the severe pain, and is not allowed to die in a dignified, quiet manner with the assistance of a medical practitioner.”
‘There is no duty to live’
He said the commission stated that a dying person was still a living person, and Stransham-Ford was entitled to the rights of a living person.
“The irony is, they say, that we are told from childhood to take responsibility for our lives, but when faced with death we are told we may not be responsible for our own passing … One can choose one’s education, one’s career, one can decide to get married, one can live according to a lifestyle of one’s choice, one can consent to medical treatment or one can refuse it, one can have children and one can abort children, one can practice birth control, and one can die on the battlefield of one’s country.
“But one cannot decide how to die. The choice of a patient such as the present is consistent with an open and democratic society and its values and norms as expressed in the Bill of Rights. There is of course no duty to live, and a person can waive his right to life.
“The irony … is that the state sanctions death when it is bad for a person, but denies it when it is good,” he said. – News24