- SemantisAI Judgment summaries.
- Posts
- Minister of Justice and Correctional Services and Others v Estate Late James Stransham-Ford and Others [2016] ZASCA 197; [2017] 1 All SA 354 (SCA); 2017 (3) BCLR 364 (SCA); 2017 (3) SA 152 (SCA) (6 December 2016)
Minister of Justice and Correctional Services and Others v Estate Late James Stransham-Ford and Others [2016] ZASCA 197; [2017] 1 All SA 354 (SCA); 2017 (3) BCLR 364 (SCA); 2017 (3) SA 152 (SCA) (6 December 2016)
This appeal deals with mootness. Mootness is the term used to describe the situation where events overtake matters after judgment has been delivered, so that further consideration of the case by way of appeal will not produce a judgment having any practical effect.
Ross Shepstone
April 10, 2024
The respondent, Robin Stransham-Ford, was a South African advocate suffering from terminal cancer. He brought an application to the High Court of South Africa, Gauteng Division, Pretoria, seeking an order that would allow a medical practitioner to end his life or provide him with the means to do so himself, without fear of prosecution or professional sanctions. He also sought a declaration that the common law crimes of murder and culpable homicide, insofar as they related to physician-assisted suicide and euthanasia, unjustifiably limited his constitutional rights.
The application was brought against the Minister of Justice and Correctional Services, the Minister of Health, the National Director of Public Prosecutions and the Health Professions Council of South Africa. Stransham-Ford passed away before the application could be heard and judgment delivered. The High Court nonetheless granted the order, declaring that Stransham-Ford had the right to end his life with the assistance of a medical practitioner, and that any such medical practitioner would not be subject to prosecution or professional sanctions. The Court also held that the common law crimes of murder and culpable homicide were overbroad and in conflict with the Bill of Rights.
“[26] The jurisprudence in appellate courts speaks of the case having become moot so that it no longer presents a live issue for determination. I do not think that the extinguishing of a claim by death before judgment is an instance of mootness in the sense in which that expression is used in these cases. If a cause of action ceases to exist before judgment in the court of first instance, there is no longer a claim before the court for its adjudication. Mootness is the term used to describe the situation where events overtake matters after judgment has been delivered, so that further consideration of the case by way of appeal will not produce a judgment having any practical effect. Here we are dealing with a logically anterior question, namely, whether there was any cause of action at all before the high court at the time it made its order. Was there anything on which it was entitled to pronounce? The principles governing mootness have little or no purchase in that situation.”
The four respondents appealed the decision. Stransham-Ford's estate resisted the appeal. Several organisations also applied to make submissions as amici curiae, which were granted.
The appeal was upheld and the High Court order set aside. Stransham-Ford's death meant that there was no longer a live issue to be determined and his claim had ceased to exist. The High Court should have disposed of the application on this basis.
Furthermore, the order was granted on an incorrect understanding of the law and the facts. The Court failed to appreciate the distinction between physician-administered euthanasia and physician-assisted suicide. It also erred in finding that the common law crimes of murder and culpable homicide absolutely prohibited assisted suicide and euthanasia, when in fact the position was not so clear cut. The Court further erred in finding that the current law unjustifiably limited Stransham-Ford's constitutional rights, without properly investigating the facts or considering the international position.
The Supreme Court of Appeal also found that the High Court had been presented with an inadequate factual basis upon which to make its decision. Important evidence was missing and the haste with which the application was brought and determined did not allow for a full and proper investigation of the issues. The Court noted that issues of this importance required a carefully presented evidential record, which was lacking in this instance.
Wallis JA added in conclusion that it was Parliament's role to decide such profound moral questions, and that the courts should leave the question of legalising euthanasia and physician-assisted suicide to the legislature.
The ratio decidendi of the Supreme Court of Appeal's judgment in this case is threefold. Firstly, the court held that the respondent's claim ceased to exist upon his death and therefore the High Court should not have granted the order. Secondly, the court found that the High Court's order was based on an incorrect understanding of the current state of South African law on euthanasia and physician-assisted suicide, and that the facts of the case were inadequately investigated. Thirdly, the court held that it was inappropriate for the High Court to embark on a reconsideration of the common law crimes of murder and culpable homicide in the absence of a live dispute and on such an inadequate factual basis.
The cases referred to most frequently in the judgment are:
S v De Bellocq 1975 (3) SA 538 (T)
S v Marengo 1991 (2) SACR 43 (W)
Ex parte Minister van Justisie: In re S v Grotjohn 1970 (2) SA 355 (A)
S v Hartman 1975 (3) SA 532 (C)
S v Smorenburg 1992 (2) SACR 389 (C)
S v Nkwanyana 2003 (1) SA 303 (W)
Clarke v Hurst NO 1992 (4) SA 630 (D)
Stoffberg v Elliott 1923 CPD 148
South African Associated Newspapers Ltd and Another v Estate Pelser 1975 (4) SA 797 (A)
Argus Printing and Publishing Co Ltd and Others v Esselen’s Estate 1994 (2) SA 1 (A)
Other cases referred to in the judgment include:
Mighty Solutions t/a Orlando Service Station v Engen Petroleum Ltd and Another [2015] ZACC 34; 2016 (1) SA 621 (CC)
National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC)
IEC v Langeberg Municipality 2001 (3) SA 925 (CC)
MEC for Education, KwaZulu Natal & others v Pillay 2008 (1) SA 474 (CC)
Pheko & others v Ekurhuleni Metropolitan Municipality [2011] ZACC 34; 2012 (2) SA 598 (CC)
Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others [2012] ZASCA 166; 2013 (3) SA 315 (SCA)
Director of Public Prosecutions, Transvaal v Minister of Justice and Correctional Services and Others [2009] ZACC 8; 2009 (4) SA 222 (CC)
R v Peverett 1940 AD 213
S v Williams 1986 (4) SA 1188 (A)
Willenburg v Willenburg and Another (1908) 25 SC 775
R (on the application of Nicklinson and others) v Ministry of Justice (Nicklinson) [2014] UKSC 38; [2014] 3 All ER 843 (SC)
Airedale NHS Trust v Bland 1993 AC 789 (HL)
Cruzan v Director, Missouri Department of Health 497 U.S. 261 (1990)
In the Matter of Karen Quinlan 355 A 2d 647 70 N.J. 10 (1976)
Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235 (HC)
R v Adams 1957 Crim LR 365
S v Robinson and Others 1968 (1) SA 666 (A)
S v Hibbert 1979 (4) SA 717 (D)
Pretty v Director of Public Prosecutions and Secretary of State for the Home Department [2001] UKHL 61; [2002] 1 All ER 1 (HL)
Pretty v United Kingdom [2002] 35 EHRR 1
Haas v Switzerland [2011] 53 EHRR 33
Koch v Germany (2014) 58 EHRR 6
Gross v Switzerland (2014) 58 EHRR 7
Rodriguez v Attorney-General of Canada [1993] SCR 519
Carter v Canada (Attorney General) 2015 SCC 5; [2015] 1 SCR 331
Carter v Canada (Attorney General) 2012 BCSC 886 (CanLII)
Fleming v Ireland [2013] IESC 19
Morris v Brandenburg Supreme Court of New Mexico, No S-1-SC-35478 dated 30 June 2016
R v Kennedy [2007] UKHL 38; [2008] 1 AC 269; [2007] 4 All ER 1083 (HL)
Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies intervening) 2001 (4) SA 938 (CC)
Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA)
Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd [2011] ZACC 30; 2012 (1) SA 256 (CC)
Prince v President, Cape Law Society, and Others 2001 (2) SA 388 (CC)
Washington v Glucksberg 521 US 702 (1997)
Baxter v State of Montana 2009 Mt 449
Morris v Brandenburg supra, fn 66
R v Adams supra, fn 37
S v Gordon 1962 (4) SA 727 (N)
Labuschagne ‘Strafregtelike Aanspreeklikheid van die Oorlewende van ‘n Selfdodingspakt’ (1995) 112 SALJ 16
Seales v Attorney-General [2015] NZHC 1239
Minister of Police v Mboweni and Another [2014] ZASCA 107; 2014 (6) SA 256 (SCA); [2014] 4 All SA 452 (SCA)
Nicklinson [2014] UKSC 38; [2014] 3 All ER 843 (SC)
Samia A Hurst and Alex Mauron ‘Assisted suicide and euthanasia in Switzerland: allowing a role for non-physicians’ 2003 BMJ 326 (7383)
Linda Ganzini ‘Legalised Physician Assisted Death in Oregon’ QUT Law Review, Vol 16 (1)
Patient Choice and Control at End of Life, Title 18: Health Chapter 113 of the Vermont Statutes
End of Life Option Act AB 15 available at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520162AB15
John Keown ‘The Law and Practice of Euthanasia in the Netherlands’ (1992) 108 LQR 51
R (on the application of Y) v General Medical Council [2015] EWHC 209 (Admin)
R v Bourque 2015 SCC 69; [2015] 3 SCR 359
R v Sueing 2012 SCC 76; [2012] 3 SCR 899
The judgment also refers to secondary sources and commentary, including:
A Hockton The Law of Consent to Medical Treatment (1999)
J R L Milton South African Criminal Law and Procedure Vol 2, 3ed (1996)
J Burchell Principles of Criminal Law 5ed (2016)
C R Snyman Criminal Law 5ed (2008)