Minister of Justice and Correctional Services and Others v Estate Late Robert James Stransham-Ford

Robert Stransham-Ford, an advocate, was terminally ill with cancer and sought a High Court order allowing a medical practitioner to either administer a lethal agent to end his life (physician administered euthanasia - PAE) or provide him with lethal drugs he could self-administer (physician assisted suicide - PAS). He brought an urgent application on 17 April 2015 seeking such relief, claiming it was required to protect his constitutional rights to dignity and bodily integrity. The High Court heard the matter on 29 April 2015 and granted an order on 30 April 2015 declaring he was entitled to such assistance and developing the common law of murder and culpable homicide. However, Mr Stransham-Ford had died at approximately 8:00 am on 30 April 2015, two hours before the order was granted, though the court was not informed of his death. The judge refused to recall the order after learning of the death, stating the judgment had broader societal implications. His estate sought to defend the order on appeal.

• Whether the High Court could or should have made an order after Mr Stransham-Ford's death had extinguished his cause of action
• Whether the existing South African common law on murder, culpable homicide and assisted suicide prohibits physician assisted suicide and physician administered euthanasia in all circumstances
• Whether the common law crimes of murder and culpable homicide should be developed to permit PAE and/or PAS
• Whether constitutional rights to life, dignity and bodily integrity encompass a right to determine the manner and timing of death with medical assistance
• Whether the factual record and legal argument were adequate to justify development of the common law
• Whether the estate had locus standi to continue the litigation

The appeal was upheld and the order of the High Court was set aside in its entirety. The respondent estate was ordered to pay the costs incurred by the fourth appellant (HPCSA) in applying for access to medical records and procuring expert evidence from Dr David Cameron.

A cause of action that is purely personal to a litigant is extinguished by that person's death before judgment and does not transmit to their estate - the actio personalis moritur cum persona principle applies. Where a claim ceases to exist before judgment at first instance, there is no claim before the court for adjudication and no order should be made. This is distinguishable from mootness on appeal. Courts may not develop the common law when there is no justiciable controversy before them, even if they believe the issue has broader societal importance. Development of the common law, particularly in relation to fundamental crimes like murder and culpable homicide, requires: (1) a live dispute properly before the court; (2) an accurate understanding of the existing state of the law; (3) an adequate factual record; (4) full legal argument on all relevant issues including constitutional justification under section 36; and (5) careful consideration of whether the matter is more appropriately addressed by the legislature given separation of powers principles. South African law does not impose a blanket prohibition on all forms of assistance with suicide - whether such assistance constitutes murder or culpable homicide depends on the application of general criminal law principles regarding mens rea, causation and unlawfulness to the specific facts of each case, as explained in Grotjohn.

The Court made extensive observations on matters it did not need to decide: (1) Consent is not a defence to murder under current law (Robinson, Peverett) and physician administered euthanasia therefore constitutes murder, though circumstances would heavily influence sentencing. (2) Patients may lawfully refuse medical treatment (including life-sustaining treatment) as an aspect of bodily integrity and dignity. (3) Doctors may lawfully prescribe palliative care that may hasten death as a side effect (the "double effect" principle from Clarke v Hurst). (4) Courts may authorize withdrawal of treatment from patients lacking capacity in appropriate circumstances. (5) There is no constitutional right to die - the right to life is generally viewed as antithetical to such a right, though this remains to be definitively determined. (6) Whether dignity, bodily integrity or other constitutional rights encompass a right to determine manner and timing of death with medical assistance remains an open question requiring proper consideration in an appropriate case. (7) International jurisprudence shows wide variation in approaches, with only four countries permitting PAE (Netherlands, Belgium, Luxembourg, Canada) and a handful permitting PAS (those four plus Switzerland and several US states). (8) Evidence on palliative care advances, cultural attitudes to death in diverse South African communities, risks of coercion of vulnerable persons, and regulatory capacity would all be relevant to proper consideration of these issues. (9) On complex moral issues engaging profound societal values, legislative determination is generally preferable to judicial development, particularly where Parliament has the capacity to establish comprehensive regulatory frameworks with safeguards. (10) The litigation appeared to be driven by advocacy organization Dignity SA rather than purely by Mr Stransham-Ford's personal interests, which affected its appropriateness for urgent hearing.

This judgment is highly significant in South African law as it: (1) clarifies that the legal position on physician assisted suicide and euthanasia is not a simple blanket prohibition but depends on application of criminal law principles of intention, causation and unlawfulness to specific facts; (2) establishes that Grotjohn does not create an absolute prohibition on assisting suicide; (3) sets important limits on when courts may develop common law, requiring live disputes, adequate factual records, full legal argument and proper consideration of constitutional justification; (4) emphasizes the proper separation of powers, noting that profound moral and social policy questions of this nature are generally better suited to legislative determination than judicial development; (5) provides comprehensive comparative analysis of international approaches to end-of-life issues; (6) distinguishes between lawful refusal/withdrawal of treatment, palliative care with double effect, and unlawful active euthanasia; (7) establishes that causes of action that are purely personal are extinguished by death and do not pass to estates; and (8) emphasizes the importance of South African context including healthcare disparities, cultural diversity and enforcement capacity in considering these issues. The judgment leaves open the possibility that in an appropriate case with proper evidence and argument, the common law might be developed, but makes clear this was not such a case.