Authored By: Dineo Mogotsi
University of the Western Cape
Introduction
South African law sends a mixed message about death. A person is free to end her own life. A competent patient may also refuse treatment, even if this means she will die.[1] But a doctor cannot lawfully help a dying patient to die. This is true even if the patient asks clearly for that help. A doctor who does help can be charged with murder. The patient’s consent makes no difference.
This tension occurred in 2015. A sick man, Robin Stransham Ford, asked the High Court for help. He wanted a doctor to be allowed to help him die, without fear of prosecution.[2] He won in the High Court but he died before the order could help him. The Supreme Court of Appeal set the order aside. It did not settle the underlying question.[3] The South African Law Commission recommended reform as far back as 1998, nothing has changed since.[4]
This article argues that the total ban on active assistance in dying is hard to defend. This is true for one group of patients: adults who are mentally competent, who are dying, who are suffering badly, and who ask clearly and repeatedly for help. The law allows suicide. It allows the refusal of treatment but it bans any form of medical assistance. This protects autonomy for some patients and not others. Often the only real difference is what kind of illness a patient has. At the same time, this article does not call for an unlimited right to assisted death. South Africa has high levels of poverty, inequality and family pressure. Any reform must come with strict safeguards for the vulnerable.
Part two sets out the law as it stands today. It also explains how a criminal court would analyse a case of assisted dying. Part three looks closely at Stransham Ford and more recent Davison prosecutions. Part four weighs the argument for reform against the risks. Part five looks at other countries and proposes safeguards for South Africa. Part six concludes.
The Existing Legal Framework
Suicide, Refusal of Treatment, and Living Wills
Refusal of treatment occurs where a competent patient says no to treatment, this includes life saving treatment. Passive euthanasia is where a doctor withholds or withdraws life sustaining treatment. Physician assisted suicide (PAS) is where a doctor supplies the means of death but the patient acts alone. Physician administered euthanasia (PAE) is where the doctor performs the final act, this might be by injection. Only the first two are currently lawful.
Neither suicide nor attempted suicide is a crime in South Africa.[5] A competent adult may also refuse medical treatment. Treating her without consent is unlawful.[6] The leading case is Castell v De Greef, the court held that a patient’s right to bodily integrity lets her refuse treatment. It does not matter whether her doctors think this is a wise choice.[7] Clarke v Hurst applied the same logic where the patient could not decide for herself. The court allowed a curator to withdraw feeding from a patient in a permanent vegetative state. It relied on his previously expressed wishes and his best interests.[8] His living will was treated as strong evidence of what he wanted. It was not treated as an order the doctors had to obey. This is still the position today. A living will guides a decision, it is not guaranteed to bind anyone.
Constitutional Rights
The Constitution protects the right to life.[9] It protects the right to dignity.[10] It also protects bodily and psychological integrity, including control over one’s own body.[11] The Constitutional Court has said that life and dignity are linked. The right to life protects a life worth living. It does not just protect mere biological survival.[12] Forcing someone to keep living through pain does not serve the right to life. This is true where the person sees that pain as undignified. But the right to life still carries real weight. The state has good reason to protect people from being pushed toward death, rather than choosing it freely.
Assisting Death
Helping someone to die can amount to murder or culpable homicide. The person’s consent is not a defence.[13] In S v Hartmann, a doctor gave his dying, suffering father a lethal dose. He was convicted of murder. His compassion only reduced his sentence. It did not excuse the killing.[14] The Supreme Court of Appeal confirmed this in the Stransham Ford appeal. A doctor who gives a patient a lethal dose at her request commits murder, whatever her wishes.[15]
How a Court Actually Analyses These Cases
Assisted dying is not its own crime. The court will ask two things, do the facts fit an existing crime, usually murder? Does any defence remove liability? Four elements matter here: conduct, unlawfulness, causation and fault.
Conduct can be an act, such as an injection. It can also be an omission, such as switching off a machine. Unlawfulness asks whether some defence excuses what would otherwise be a crime. Consent and mercy do not count as defences in South African law.[16] Causation asks whether the accused’s conduct actually and legally caused the death. This is where the withdrawal cases differ from assistance cases. When treatment is withdrawn, the underlying illness is treated as the true cause of death. When a doctor injects a lethal drug, the doctor’s own act is treated as the cause.[17] Fault asks whether the accused meant to bring about death. It can also be satisfied where he foresaw the risk of death and accepted it anyway. In almost every assisted dying case, the doctor clearly intends the death. So the real argument is always about unlawfulness and causation, not about intention.
Stransham Ford and the Courts
The High Court
Robin Stransham Ford was a sixty five year old advocate, who was dying of prostate cancer. He asked the High Court to declare that a doctor who helped him die would not act unlawfully.[18]
Fabricius J found that he was mentally sound and fully informed. He had made a free and repeated decision to end his suffering. The judge drew on the Canadian case of Carter v Canada. He held that an absolute ban on assisted dying unjustifiably limited Mr Stransham Ford’s rights to dignity and bodily integrity. He granted the order.[19] Mr Stransham died naturally about two hours before the order was handed down.
The Supreme Court of Appeal
The Minister of Justice, the National Director of Public Prosecutions and the Health Professions Council all appealed. The SCA set the order aside.[20] Its main reason was simple. Mr Stransham Ford’s claim had died with him. So the case was moot before judgment was even given. The court also found that the High Court had not properly examined the existing law. It had relied on too thin a set of facts.[21] The SCA restated the current law. Consent is no defence. PAE is murder. But the court did not rule on whether that law should change. It said, in effect, that this was the wrong case to develop the common law. A full trial, or Parliament, would be a better route.[22]
Passive vs Active
Withdrawing treatment is lawful. Actively assisting death is not.[23] But from the patient’s point of view, the outcome will be death either way. Often the doctor’s is the same too, which is to end suffering. The line also creates an odd result. A patient kept alive by a machine can have it switched off. A patient who is dying but is not yet dependent on any machine has no lawful way to get help. This is true no matter how clearly she asks. Whether a dignified death is available can end up depending on what equipment happens to be keeping someone alive. It should depend on what the patient actually wants.
Mercy is not a defence
Sean Davison co-founded the group Dignity SA. In 2019, he was convicted of the premeditated murder of three people he had helped to die.[24] One was a quadriplegic friend. He was sentenced to eight years. Five of those years were suspended and he served three years under house arrest.[25] The case shows an old rule still holding today. It comes from Grotjohn and Hartmann. Mercy can soften a sentence. It cannot make an unlawful killing lawful. The case also shows a real cost of the total ban. With no lawful, regulated option, assisted dying does not disappear. It moves underground instead, with no oversight and no safeguards.
Does The Current Law Unfairly Limit Autonomy?
The Case for Reform
Makwanyane says that life and dignity are linked.[26] If that is true, then forcing a dying, suffering person to keep living against her clear wishes is hard to square with the Constitution’s own values. The Constitution already trusts competent adults to refuse treatment. This lets them bring about their own death.[27] It is not obvious why the same trust should disappear the moment a patient needs a doctor’s help. This is often only because she cannot act alone. As things stand, the law does not really protect autonomy across the board. It protects autonomy only for patients whose bodies allow them to exercise it without help.
It is also worth being honest about what the lawful alternatives actually offer. Refusing treatment, or relying on palliative care, does not guarantee a quick, painless or dignified death. Sometimes it means a longer period of suffering rather than a shorter one.[28] The reform argument is the strongest for a narrow group. It is also least controversial for this group, which is adults with full mental capacity, who are suffering from a terminal or incurable condition with no real hope of improvement and whose request is to die informed, voluntary and repeated. Mr Stransham Ford fell into this group.
The Case Against Reform
The concerns on the other side are real, not just sentimental. The first is coercion. Elderly, disabled, or dependent people might feel like a burden, even without anyone saying so directly. A right to die can quietly turn into a felt duty to die. The second concern is especially serious in South Africa, where there is unequal access to healthcare. Good pain relief and hospice care are hard to reach for poor patients. A request to die may reflect a lack of proper care, rather than a genuine free choice. A choice shaped by poverty is not really a free choice at all. A third concern is the slippery slope. Rules that start narrow can be widened later. They could end up covering people the original law never intended to include. A fourth concern is the effect on doctors. Their profession has traditionally been about preserving life. They would need strong protection if they wanted to refuse to take part on grounds of conscience.
None of this justifies a total ban, a total ban does not remove these risks. It simply pushes the practice underground, as the Davison case shows. But these concerns should be considered very carefully in any new law. They should not just be brushed aside.
Lessons From Other Countries and a Way Forward
Canada is a useful comparison. Its constitutional reasoning is close to South Africa’s own. In Carter v Canada, the Supreme Court of Canada struck down the total ban on assisted dying. It held that the ban was not necessary to protect vulnerable people. A properly regulated system could do the same job while still respecting patients’ rights.[29] The ruling was limited to competent adults with a serious and incurable condition causing intolerable, lasting suffering. Parliament later passed legislation building on this.
The Netherlands and Belgium allow both PAS and PAE but strict conditions should be met first. The request must be voluntary, well considered and repeated. The suffering must be unbearable, with no prospects of improvement. At least one independent doctor must confirm this.[30] Every case must be reported to independent review body afterwards. Oregon Takes a narrower approach. Only PAS is allowed, not PAE. It is only for patients given six months or less to leave. Two oral requests and a written, witness request are needed first.[31]
South Africa can draw on this experience. It can also draw on the Law Commission’s own 1998 proposals.[32] A South African law should, at minimum, do the following. It should limit eligibility to competent adults with a terminal or incurable condition causing unbearable suffering. It should require a written, repeated request after a waiting period. It should require confirmation by at least two independent doctors, with a psychiatric assessment where capacity is in doubt. It should create an independent body to review every case after the fact. It should protect doctors who conscientiously object, while making sure patients can still be referred elsewhere. And it should tie any such law to a real commitment to expand palliative care. This way, the choice to die is never simply a response to poor care. All of this should be done through a dedicated statute. It should not be left to the criminal courts to work out case by case. The SCA itself said that ordinary murder litigation is not the right tool for this job. [33]
Conclusion
South African law lets a person end her own life. It lets a doctor withdraw treatment that is keeping her alive. But it treats any active help in dying as murder, even if the person asked for it. Stransham Ford exposed this tension without resolving it. Davison shows that mercy still only softens a sentence, it does not excuse a killing. For one narrow group, the total ban is hard to justify. This group is competent, terminally ill adults who freely and reputedly ask for help. The ban is hard to justify by reference to the very rights that the Constitution is meant to protect, which are the right to dignity, bodily integrity and life.
This does not mean autonomy should win automatically. South Africa has high poverty, inequality and uneven access to healthcare. So any reform must be built carefully, with real safeguards against coercion and neglect. Other countries show that this balance can be struck through legislation. It needs clear eligibility rules, independent checks and honest reporting. These countries also show something else that Parliament, not a single applicants court case, is the right place to strike that balance. The Law Commission said so almost 3 decades ago. South Africa still has not acted on it.
Bibliography
Table of Cases
Carter v Canada (Attorney General) 2015 SCC 5, [2015] 1 SCR 331
Castell v De Greef 1994 (4) SA 408 (C)
Clarke v Hurst NO 1992 (4) SA 630 (D)
Ex Parte Die Minister van Justisie: In re S v Grotjohn 1970 (2) SA 355 (A)
Minister of Justice and Correctional Services v Estate Late Stransham-Ford [2016] ZASCA 197; 2017 (3) SA 152 (SCA)
S v Hartmann 1975 (3) SA 532 (C)
S v Makwanyane 1995 (3) SA 391 (CC)
Stransham-Ford v Minister of Justice and Correctional Services [2015] ZAGPPHC 230; 2015 (4) SA 50 (GP)
Table of Legislation and Official Reports
Belgian Act on Euthanasia of 28 May 2002
Constitution of the Republic of South Africa, 1996
Death with Dignity Act, Or Rev Stat §§127.800–127.897 (1997) (Oregon, USA)
National Health Act 61 of 2003 (South Africa)
South African Law Commission Project 86, Euthanasia and the Artificial Preservation of Life (November 1998)
Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2002 (Netherlands)
Secondary Sources
‘Euthanasia Activist Sean Davison Convicted of Murder, Sentenced to Three Years House Arrest’ RNZ (Wellington, 18 June 2019)
‘Right-to-Die Activist Sean Davison Vows to Carry On Fight in Tutu’s Honour’ Daily Maverick (Johannesburg, 20 June 2022)
McQuoid-Mason D, ‘Assisted Suicide and Assisted Voluntary Euthanasia: Stransham-Ford High Court Case Overruled by the Appeal Court — But the Door Is Left Open’ (2017) 107 South African Medical Journal 396
Mnyandu N, ‘Developing the Common Law Crime of Murder in Relation to Physician-Assisted Suicide and Physician-Assisted Euthanasia: Revisiting the Missteps of Stransham-Ford v Minister of Justice and Correctional Services 2015 (4) SA 50 (G)’ (2021) 54 De Jure 1
Oregon Health Authority, ‘Death with Dignity Act: Frequently Asked Questions’ (oregon.gov, 2024)
[1] Minister of Justice and Correctional Services v Estate Late Stransham-Ford [2016] ZASCA 197; 2017 (3) SA 152 (SCA) para 30.
[2] Stransham-Ford v Minister of Justice and Correctional Services [2015] ZAGPPHC 230; 2015 (4) SA 50 (GP).
[3] Minister of Justice and Correctional Services v Estate Late Stransham-Ford [2016] ZASCA 197; 2017 (3) SA 152 (SCA).
[4] South African Law Commission Project 86, Euthanasia and the Artificial Preservation of Life (November 1998).
[5] Minister of Justice and Correctional Services v Estate Late Stransham-Ford para 30.
[6] National Health Act 61 of 2003, s 7.
[7] Castell v De Greef 1994 (4) SA 408 (C) 425.
[8] Clarke v Hurst NO 1992 (4) SA 630 (D).
[9] Constitution of the Republic of South Africa, 1996, s 11.
[10] Constitution, s 10.
[11] Constitution, s 12(2)(b).
[12] S v Makwanyane 1995 (3) SA 391 (CC) paras 144–146.
[13] Ex Parte Die Minister van Justisie: In re S v Grotjohn 1970 (2) SA 355 (A) 364.
[14] S v Hartmann 1975 (3) SA 532 (C).
[15] Minister of Justice and Correctional Services v Estate Late Stransham-Ford para 40.
[16] Ex Parte Die Minister van Justisie: In re S v Grotjohn 364.
[17] Clarke v Hurst NO 1992 (4) SA 630 (D).
[18] Stransham-Ford v Minister of Justice and Correctional Services (n2).
[19] Carter v Canada (Attorney General) 2015 SCC 5, [2015] 1 SCR 331, discussed in Stransham-Ford (n2).
[20] Minister of Justice and Correctional Services v Estate Late Stransham-Ford (n2).
[21] Minister of Justice and Correctional Services v Estate Late Stransham-Ford (n2) paras 40, 48.
[22] Minister of Justice and Correctional Services v Estate Late Stransham-Ford (n2) para 48.
[23] Clarke v Hurst NO 1992 (4) SA 630 (D); S v Hartmann 1975 (3) SA 532 (C).
[24] ‘Euthanasia Activist Sean Davison Convicted of Murder, Sentenced to Three Years House Arrest’ RNZ (Wellington, 18 June 2019).
[25] ‘Right-to-Die Activist Sean Davison Vows to Carry On Fight in Tutu’s Honour’ Daily Maverick (Johannesburg, 20 June 2022).
[26] S v Makwanyane 1995 (3) SA 391 (CC) paras 144–146.
[27] Constitution, s 12(2); Castell v De Greef 1994 (4) SA 408 (C).
[28] Ntokozo Mnyandu, ‘Developing the Common Law Crime of Murder in Relation to Physician-Assisted Suicide and Physician-Assisted Euthanasia: Revisiting the Missteps of Stransham-Ford v Minister of Justice and Correctional Services 2015 (4) SA 50 (G)’ (2021) 54 De Jure 1.
[29] Carter v Canada (Attorney General) 2015 SCC 5, [2015] 1 SCR 331 paras 97–98, 127.
[30] Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2002 (Netherlands); Belgian Act on Euthanasia of 28 May 2002.
[31] Death with Dignity Act, Or Rev Stat §§127.800–127.897 (1997); Oregon Health Authority, ‘Death with Dignity Act: Frequently Asked Questions’ (oregon.gov).
[32] South African Law Commission (n3).
[33] Minister of Justice and Correctional Services v Estate Late Stransham-Ford (n2) para 48.
