Abstract

Keywords

Common law development; Bill of Rights; physician-assisted suicide; physician-administered euthanasia.

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1 Introduction

Physician-assisted death can take the form of either physician-administered euthanasia (PAE) or physician-assisted suicide (PAS), or both. The call for physician-assisted death is grounded on the idea of assisting terminally ill patients to escape protracted suffering, discomfort, deteriorating health and the diminished privacy associated with institutional caring. PAE involves a voluntary and informed request by a patient to have his or her life ended by a physician, whereas PAS involves a voluntary and informed request by a patient to end his or her own life with the help of a physician. 1

 Ntokozo Mnyandu. LLB LLM (UKZN). PhD Candidate, Lecturer, School of Law, Howard College Campus, University of KwaZulu-Natal, South Africa. Email: mnyandun@ukzn.ac.za. ORCID: https://orcid.org/0000-0003-2576-7980.

1 Minister of Justice and Correctional Services v Estate Stransham-Ford 2017 3 SA 152 (SCA) (hereafter the Estate Stransham-Ford case) para 2.

The Pretoria High Court is currently considering whether to recognise a right to physician-assisted death. The applicants in Walter v Minster of Health 2

2 Walter v Minister of Health (judgment pending) case number 31396/2017.

In determining whether to lift the prohibition on PAS and PAE the court will have to determine whether the common law prohibition is consistent with the Constitution. If it is not, the court will either develop the common law or leave it to Parliament to remove the inconsistency. 6

6 Estate Stransham-Ford case para 73.

8(1), 8(3) and 39(2) are triggered. 7

7 Section 8(1) of the Constitution of the Republic of South Africa, 1996 (the Constitution): The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.

Section 8(3) of the Constitution: "When applying a provision of the Bill of Rights … a court must apply, if necessary develop the common law to the extent that legislation does not give effect to the right. A court may do this in order to give effect to a right in the Bill of Rights."

Section 39(2) of the Constitution: "When developing the common law, every court must promote the spirit, purport and objects of the Bill of Rights."

2 Is there a right to die and how far have we come?

A right to die means having control over the manner and timing of one's death. 9

9 Quinot 2004 CILSA 146.

constitutionality of PAS or PAE, it recognised that a right to die in the form of passive euthanasia exists. 12

12 Clarke case 660H. Although the court said that life sustaining medical interventions could be removed, it did so on the basis that doing so in the circumstances would not be contrary to the legal convictions of the community. The court did not decide the matter based on the advanced directive (the living will) that Clarke had made. Thus, it is still unclear whether a person, while he or she is competent to do so, can request in advance to have his treatment terminated - see Grove 2020 Stell LR 270.

In 2015 Stransham-Ford requested a different kind of a right to die. 13

13 Stransham-Ford v Minister of Justice and Correctional Services 2015 4 SA 50 (GP).

The Pretoria High Court is now faced with another application for a right to die in the form of physician-assisted death. In this case Walter and her palliative care patient have requested the prohibition against PAE to be lifted and for the guidelines to the HPCSA to be amended so that PAS and PAE are not considered unprofessional conduct.

3 Developing the common law in the context of PAE and PAS

3.1 An obligation to develop the common law

A court faced with a challenge to the prohibition of PAE and PAS has the obligation to interrogate and if necessary develop the common law crimes of murder and culpable homicide to bring them in line with the spirit of the Constitution. 15

15 Leinius and Midgley 2002 SALJ 18. Contrary to Carmichele's interpretation of ss 39(2) and 173 of the Constitution as imposing an obligation to develop the common law, Leinius and Midgley argue that although s 173 confirms the power of the court to develop the common law, there is no indication that they must do so. That obligation is sourced in s 8(1) read with s 8(3), which state that the court must develop the common law.

use this power to ensure that the common law is not trapped in the limitations of the past and that where necessary it is revisited and revitalised with the spirit of the Constitution. 17

17 Du Plessis case para 86.

To develop the common law means to determine its contents and where necessary to bring it in line with the values and standard of the Constitution. 19

19 Rautenbach and Venter Rautenbach-Malherbe Constitutional Law 268.

Several sections of the Constitution can be invoked when developing the common law. However, the discussion below reveals that there has been a lack of clarity on how to go about this constitutionalisation process. The inconsistency in precedent is summed up by Woolman, who after analysing various court decisions deplores the confusion which has been created, by stating:

Readers of a judgment [of the Constitutional Court are] at a loss as to how the Bill of Rights might operate in some future matter. An approach to constitutional adjudication that makes it difficult for lower court judges, lawyers, government officials and citizens to discern, with some degree of certainty, how the basic law is going to be applied, and to know, with some degree of certainty, that the basic law is going to be applied equally constitutes a paradigmatic violation of the rule of law. 22

22 Woolman 2007 SALJ 762. The author criticises the Constitutional Court over the use of s 39(2) as a convenient way to settle a dispute. He reasons that this may be problematic in the future as it seems that the court is uncomfortable with the direct application of specific substantive provisions of the Bill of Rights to the common law, particularly in cases where it should have followed a direct application approach. It may be problematic because in avoiding direct application the court is choosing to rather engage in "vague value" analysis under s39(2) as opposed to giving the provisions of the Bill of Rights clear content that provide a level of certainty for future

At the heart of the debate is the question of when it is appropriate in the constitutionalisation of the common law to invoke section 39(2) of the Constitution. 23

23 Brickhill, Du Plessis and Penfold Constitutional Litigation 9.

Section 8(1) of the Constitution, which holds that the Bill of Right "applies to all law", confirms that all law including the legal norms found in the common law must conform with the Constitution. This conformity may be achieved through a declaration of invalidity or the development of a new common law rule or the interpretation of the legal norm to bring it in line with the Bill of Rights. This means that applicants can challenge a common law rule for being in direct violation of the Constitution. In doing so they would rely on sections 8(1) and 172(1) of the Constitution, which gives the court the power to "declare any law that is inconsistent with the Constitution … invalid." If the law is declared invalid, it may be necessary so save it by developing the common law in a manner contemplated by section 8(3). The section holds that in order to give effect to a right the courts must apply and if necessary develop the common law.

Section 8(1) is said to apply in cases where an applicant challenges the law for being in direct violation of a constitutional right. Section 8(3) allows the court to develop the common law if applying it does not bring the required relief, whereas section 39(2) is said to be of relevance when the common law is challenged for failing to give effect to the spirit of the Constitution. However, this paper shows that section 39(2) applies whenever a court is asked to consider whether the common law conforms to the Constitution. It is argued that when determining the content of a right under the section 8(1) analysis, the court must consider the values of the Constitution. The court is also required to have regard to the ethos of the Constitution when it is interpreting and applying or developing the common law under section 8(3).

Section 39(2) is also relevant when the court is engaged in an indirect application of the Bill of Rights. In other words, the court must consider the entire scheme of the Bill of Rights when it engages in any evaluation of substantive rights and the common law. While the rest of the paper provides reasons, the position is aptly described by Friedman, 25

25 Friedman 2014 SAJHR 76.

Every time a court makes a legal pronouncement… whether it involves legislation, common law or statutory law – it is under a ‘general obligation’ to promote the spirit, purport and objects of the Bill of Rights.

3.2 The application of the Bill of Rights: Where is the confusion?

The following discussion provides a synopsis of the issues at play when it comes to the proper application of the Bill of Rights to the common law. Through this discussion it is shown that there is confusion about which of the operational provisions the court should use to bring the common law in conformity with the Constitution. In considering whether to lift the common law prohibition against PAS and PAE, the court will have to define the scope and relationship of sections 8(1), 8(3) and 39(2). 26

26 Woolman "Application" 78; Currie and De Waal Bill of Rights Handbook 31.

According to some commentators, the source of the problem is the inability of the courts to answer the key question: under what condition is the application of section 39(2) to a dispute triggered? 27

27 Davis "Interpretation of the Bill of Rights" 746. Davis cites several cases where the courts have triggered s 39(2) in a dispute concerning the application of the Bill of Rights.

the need to ensure a "speedy uptake" of the Constitution's transformative objective. 31

31 Cornell and Friedman 2001 Malawi Law Journal 24.

In further criticism, Woolman 34

34 He writes that only 7 of the 23 decisions handed down in twelve years have used direct application: Woolman 2007 SALJ 766.

Although Carmichele is often viewed as providing an authoritative statement on how the courts should apply the Bill of Rights to the common law, there are different interpretations of what the case requires. 37

37 Woolman "Application" 78.

According to Woolman section 39(2) is not about direct challenges to specific provisions of the Bill of Rights, which is why the various provisions of section 8 exist. However, the idea that the court should interpret a

constitutional provision in such a way that renders it without purpose and context is at odds with reading the Constitution as a coherent and unified text. In other words, the idea that section 39(2) is irrelevant when it comes to a section 8(1) analysis cannot be sustained. Woolman believes that where specific rights are infringed, the courts should use only section 8(1) to give effect to the rights. His position is summed up by the following passage, where he states that as a matter of logic:

When the prescriptive content of the substantive rights … does not engage the law or the conduct at issue, then FC s 39(2) tells us that the more general spirit, purport and objects of the chapter may inform our efforts to bring all law into line with the final Constitution. If we reverse the spin, and we first use FC s 39 to bring the law into line with the general spirit, purport and objects of the Bill of Rights, there is simply nothing left to be done in terms of direct application. The reason is obvious, if the general purport and objects of Chapter 2 – which embraces the entire value domain constituted by the substantive provisions of the Bill of Rights, does not require a change in the law, then no narrower set of values and purposes reflected in a single provision could be expected to do so. 40

40 Woolman 2007 SALJ 776.

In essence he argues that if we refer to section 39(2) first, then there will be nothing left for section 8 to do. However, some argue that it is incorrect to read section 39(2) as applying only when there is no direct infringement of a right. This is because the determination of whether the common law is consistent with the Bill of Rights requires "the full and direct application not only of the general objectives set out in section 39(2) but primarily of all the provisions of the Bill of Rights that require protection and limitation of the rights." 41

41 Rautenbach and Venter Rautenbach-Malherbe Constitutional Law 268.

The process by which courts can influence the common law can be found in the decisions of K v Minister of Safety and Security, 44

44 K v Minister of Safety and Security 2005 6 SA 419 (CC) (hereafter the K case).

attempts to reconcile these cases with the Constitution, thereby providing clarity on how and when to apply sections 8 and 39(2) to the common law prohibition of PAS and PAE.

3.3 The impact of the Constitution on the common law

3.3.1 A direct impact

The Constitution envisages two ways in which it may have an impact on the common law. 46

46 O'Regan 1999 PELJ 10.

Directly challenging the common law can be achieved through section 8(1) of the Constitution, which states that the Bill of Rights "applies to all law". It applies directly in the sense that the court must test the substance of the relevant common law rule against the applicable substantive right. This right-based analysis considers whether the right has been infringed by the common law rule. 48

48 Cheadle and Davis "Structure of the Bill of Rights" 3.

although freedom of expression is fundamental to our democratic society, it is not a paramount value. It must be construed in the context of other values in our Constitution. In particular, the values of human dignity, freedom and equality. 51

51 Khumalo case para 25.

What this means is that the rights in the Bill of Rights must be subject to a section 39 interpretive exercise. 52

52 Roederer 2003 SAJHR 76.

of Rights. This approach is in line with the logic of viewing the Constitution as a coherent scheme of values.

A similar approach was taken in Shabalala v Attorney-General, Transvaal 54

54 The Shabalala case.

In Qozeleni v Minister of Law and Order 58

58 Qozeleni v Minister of Law and Order 1994 3 SA 625 (E).

Once the interpretive work has been concluded, and it is found that the common law rule causes an unreasonable and unjustifiable infringement, a court may declare it to be inconsistent with the Constitution and thus invalid. However, a declaration of invalidity may be insufficient or inappropriate on its own as it may leave a lacuna in the law. Therefore, it may suspend the order of invalidity to allow Parliament to remedy the defect or it may take

direct steps to resolve it. In the latter approach the court must turn to section 8(3)(a), which states that to give effect to a right, a court "must apply, or if necessary develop the common law". 61

61 The phrase "must apply" means that the court must apply a common law rule which gives effect to the right were there is no legislation giving effect to it.

3.3.2 An indirect impact

The common law may also be challenged based on its failure to promote the spirit, purport and objects of the Bill of Rights. In this instance the court will have to analyse the scope and meaning of the common law rule and then compare the outcome with the requirements of the Constitution. If the outcome is at odds with the constitutional framework, then it must be developed in terms of section 39(2). This approach represents the second way in which the Constitution impacts on the common law. The general approach to developing the common law in its own legal structure is discussed in Member of the Executive Council for Health and Social Development, 62

62 Member of the Executive Council for Health and Social Development, Gauteng v DZ 2018 1 SA 334 (CC) (hereafter the DZ case) para 31.

(1) determine what the existing common law position is; (2) consider its underlying rationale; (3) enquire whether the rule offends section 39(2) of the Constitution; (4) if it does so offend, consider how development in accordance with section 39(2) ought to take place; and (5) consider the wider consequence of the proposed change on the relevant area of the law. 63

63 DZ case para 31.

According to section 39(2), when developing the common law the court must promote the spirit, purport and objects of the Bill of Rights, and by doing so the values of the Constitution will indirectly be brought to bear. 64

64 It becomes necessary to develop the common law in this manner only when the common law is deficient in promoting s 39(2) objectives; see Carmichele case para 39; Mokone v Tasso Properties 2017 5 SA 456 (CC) paras 40-43, where the Constitutional Court developed the common law outside the scope of s 39(2) of the Constitution. The reason for this was that the common law suffered from a deficiency that is not at odds with the Bill of Rights. The court turned to s 173 of the Constitution which gives the court powers to develop the common law, taking into account the interest of justice. It found that this power is wide enough to allow for the development of the common law outside the ambit of s 39(2).

Among these values and principles are the advancement of human rights and freedoms, social justice, the rule of law, democracy and accountability, the separation of powers, constitutionalism, co-operative government and the devolution of power. 65

65 Roederer 2009 Ariz J Int'l & Comp L 484.

This understanding of section 39(2) also appears in K, 67

67 The K case.

The overall purpose of section 39(2) is to ensure that our common law is infused with the values of the Constitution. It is not only in cases where existing rules are clearly inconsistent with the Constitution that such an infusion is required. The normative influence of the Constitution must be felt throughout the common law… The obligation imposed upon courts by section 39(2) of the Constitution is thus extensive, requiring courts to be alert to the normative framework of the constitution not only when some startling new development of the common law is in issue, but in all cases where the incremental development of the rule is in issue. 68

68 K case para 17.

3.3.3 In summary

Through the cases of Shabalala, Qozeleni and others this paper has sought to make it known that although the common law may be challenged based on a direct violation of a specific substantive right, or based on it falling short of the spirit, purport and object of the Bill of Rights, the court will always invoke section 39(2) of the Constitution.

Where there is a direct challenge, section 8(1) applies in the sense that the court will test the substance of the relevant common law rule against the applicable substantive right. In determining the content of the right, the court will have regard to its context and the spirit of the Constitution. Section 39(2) requires the court to interpret substantive rights in the light of the values, ethos and principles of the Constitution. If the common law rule is found to be inconsistent with a substantive right, it will be declared invalid. It may be left to Parliament to remedy the defect or the court may choose to develop it in terms of section 8(3). At this stage the court will refer to section 39(2), which enjoins it to have regard to the spirit, purport and objects of the Bill of Rights when developing the common law. Where the challenge is indirect in that the common law falls short of the spirit, purport and objects of Constitution then the court will have to analyse the scope and meaning of the common law rule and compare the outcome with the requirements of the Constitution. If the outcome is at odds with the constitutional framework, then it must be developed accordingly in terms of section 39(2). The discussion below looks at the various remedies that attach to section 8(1),

8(3) and 39(2). In doing so, the discussion will consider the appropriateness of these remedies in the light of the challenge to the prohibition of PAS and PAE.

4 Remedies: A declaration of invalidity and the development of the common law

The discussion above has considered the case of Walter and her palliative care patient, who have approached the Pretoria High Court to challenge the common law rule which makes it unlawful for a physician to assist a patient to end his or her life. They argue that the common law crimes of murder and culpable homicide directly infringe their rights to equality, dignity, life, bodily integrity and access to health care services. In turn, they have asked that common law be declared invalid for unjustifiably limiting their constitutional rights. 69

69 Section 172(1)(a) of the Constitution: "When deciding a constitutional matter, a court: (a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency."

Although a court has discretion, it is normally in the interest of justice for successful litigants to obtain the relief they seek. 71

71 S v Bhulwana; S v Gwadiso 1996 1 SA 388 (CC) para 32.

deficiency. 72

72 Estate Stransham-Ford case para 73.

4.1 A declaration of invalidity

If the court uses sections 8(1) and 172(1)(a) to declare the common law invalid, this could result in an undesirable situation in which there is a lacuna in the law. This is because a declaration of invalidity would nullify the crimes of murder and culpable homicide. In such cases, the courts generally use one of several remedial devices which allow the law to continue in operation rather than leaving a lacuna in the law that may disrupt social relations. In a matter that involves the constitutional validity of the common law offences of murder and culpable homicide there is a real possibility of the declaration of invalidity resulting in confusion and uncertainty in the criminal justice system. This is because these offences serve an important function, as they impose liability on people who intentionally or negligently cause the death of others. Currently no other law serves this function. Instead and as discussed below, the court may choose to suspend the order and leave it to Parliament to remedy the defect. If the court takes direct steps to remedy the defect it can do so by invalidating the offending part of the law that violates the Constitution. It may also cure the defect by reading words into an invalid provision. Alternatively, the court may decide to leave the language of the provision as it is but subject it to certain conditions for proper application. In other words, the court can limit the substantive impact of the declaration of invalidity through the remedial devices of severance, reading-in or notional severance. 74

74 Van Rooyen v S 2002 5 SA 246 (CC) para 88: "Legislation must be construed consistently with the Constitution and thus, where possible, interpreted so as to exclude a construction that would be inconsistent with the Constitution. If held to be unconstitutional, the appropriate remedy ought, if possible, to be in the form of a notional or actual severance, or reading-in, so as to bring the law within acceptable constitutional standards. Only if this is not possible, must a declaration of complete invalidly of the section or subsection be made." The remedy of reading-in involves reading words into unconstitutional provisions to cure that provision and make it constitutional. In the case of notional severance, the court will leave the language of the provision intact, but subject it to a condition for proper application. Severances cure the constitutional defect by removing words from the impugned provision.

While it is suggested by Moseneke J in Thebus 75

75 Thebus v S 2003 6 SA 505 (CC) para 31.

an impugned common law rule, this is not always the case. 76

76 Rautenbach and Venter Rautenbach-Malherbe Constitutional Law 91; Bishop "Remedies" 417. These two authors argue that there is no reason in law why these remedial devices cannot be applied to common law and customary law rules which are invalidated by direct application.

While the remedies above limit the substantive impact of invalidity, it is also open to the court to adopt remedies that limit its temporal impact. 81

81 Section 172(b)(i) and (ii) of the Constitution.

While the suspension regulates the impact of the order on the future, the court may also order that the declaration of invalidity applies only to the present and not to the past. This is an order that regulates the retrospective effect of the declaration. It is an important remedy, given that law declared invalid is invalid from the moment the Constitution took effect or from the moment the conflict with the Constitution arose, whichever comes first. Courts are likely to limit the retrospective effect of an order that concerns criminal law matters. This is because orders that invalidate criminal offences could disrupt and cause uncertainty in the criminal justice system. 84

84 Minister of Justice and Constitutional Development v Prince 2019 1 SACR 14 (CC) para 102.

4.2 Developing the common law

In the event that a court decides to take direct steps to remedy the defect by developing the common law, it may do so by introducing a new rule, significantly changing an existing one or adjusting the way an existing rule is applied. 85

85 K case para 16. It is also possible to develop the common law by holding that certain conduct is not punishable in terms of existing definitions of crime (severance), or by filling in an obvious lacuna in the definition of a crime (reading-in). See Snyman 2007 SALJ 679.

While it is possible to introduce a new rule that gets tacked onto the existing ones, it would not be open to a court to create a new rule that permits PAE and PAS. This is because the existing rules of criminal law could be adapted to give effect to the rights of terminally ill patients to control the timing of their deaths. In Airedale NHS Trust v Bland 86

86 Airedale NHS Trust v Bland 1993 AC 789 (hereafter the Airedale NHS Trust case).

This is not to say that judges cannot create new rules. Judges have made the common law what it is today and they must not abrogate altogether their responsibilities of keeping it abreast of changing times. However, the point that is canvased is made clear by Carmichele, which recognises that not only must the common law be developed in a way that meets the objectives of section 39 but it must also be done within its own paradigm. 88

88 Carmichele case paras 55-56.

the court to go straight to deciding what rule would best serve the values of the Constitution and to writing that into law. 89

89 Michelman 2013 Stell LR 248.

Another possibility that exists in law and that is less obtrusive is for the court to change the ambit of existing rules. There are several ways in which this may be done. The direction taken would depend on the gaps identified. In Lee v Minister for Correction Services 90

90 Lee v Minister for Correctional Services 2013 2 SA 144 (CC) (hereafter the Lee case) para 55.

Krause 93

93 Krause 2012 Obiter 65.

Development of the law may also take place by adjusting the way in which established common law rules are applied. This involves the application of constitutionally informed content to open-ended common law concepts such as public policy to new sets of facts. 95

95 Currie and De Waal Bill of Rights Handbook 62.

development of common law crimes by our courts, Ramosa 96

96 Ramosa 2009 SACJ 368.

A similar approach could be adopted for the development of the defence of consent. Bhamjee 99

99 Bhamjee 2010 Obiter 350.

A shared element in all the identified ways of developing the common law is that the court will need to consider and be constrained by:

a variety of relevant and sometimes competing considerations including, for example, their own as well as prevalent views on morality, justice and fairness as between the parties and in society generally; the purposes and content of the relevant domestic rules and principles; economic, cultural and other evaluative norms, including industry-specific, foreign and intentional norms, the need for legal certainty, consistency among laws, and coherence in the legal system and the need to respect constitutional competence of the legislature and the executive. 104

104 Price 2012 SALJ 346.

5 Conclusion

The discussion above has examined the application of the Bill of Rights to the common law crimes of murder and culpable homicide. It has done so by inquiring which of the operational provisions would apply should the court engage with the constitutionalisation of these offences to determine whether PAS and PAE should be made lawful. The discussion was necessitated by confusion in the literature and in the courts about how the Bill should apply in the constitutionalisation of the common law. It emerged that at the heart of the problem is the question of when the courts should consider the spirit, purport and object of the Bill of Rights. In the main, the contention was that it can be introduced only when the court decides to develop the common law in terms of an indirect application and not when there is a rights-based analysis of a substantive right in the Bill of Rights, which has been directly infringed by a common law rule.

The discussion has highlighted that the court must always have regard to section 39(2), irrespective of which operational provision is relied upon by the applicants. Its application arises even if the court is not asked to consider the development of the common law. This paper shows that section 39(2) applies whenever a court is asked to consider whether the common law conforms to the Constitution. It is argued that when determining the content of a right under the section 8(1) analysis, the court must consider the values of the Constitution. The court is also required to have regard to the ethos of the Constitution when it is interpreting and applying or developing the common law under section 8(3). Section 39(2) is also relevant when the court is engaged in an indirect application of the Bill of Rights. In other words, the court must consider the entire scheme of the Bill of Rights when it engages in any evaluation of substantive rights. Having established the role of section 39(2) in both the direct and indirect application of the Bill of Rights, the paper concluded by critically analysing the remedies that attend on each of the operational provisions.

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Carmichele v Minister of Safety and Security 2001 4 SA 938 (CC)

Clarke v Hurst 1992 4 SA 630 (D)

Du Plessis v De Klerk 1996 3 SA 850 (CC)

Ex parte Die Minister van Justisie: In re S v Grotjohn 1970 2 SA 355 (A)

H v Fetal Assessment Centre 2015 2 SA 193 (CC)

K v Minister of Safety and Security 2005 6 SA 419 (CC)

Khumalo v Holomisa 2002 5 SA 401 (CC)

Kleinwort Benson Ltd v Lincoln City Council 1999 2 AC 349

Lee v Minister for Correctional Services 2013 2 SA 144 (CC)

Member of the Executive Council for Health and Social Development, Gauteng v DZ 2018 1 SA 334 (CC)

Minister of Justice and Constitutional Development v Prince 2019 1 SACR 14 (CC)

Minister of Justice and Correctional Services v Estate Stransham-Ford 2017 3 SA 152 (SCA)

Mokone v Tasso Properties 2017 5 SA 456 (CC)

National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 1 SA 6 (CC)

NM v Smith 2007 7 BCLR 751 (CC)

Pharmaceutical Manufacturers of South Africa: In re: ex parte President of the Republic of South Africa 2000 2 SA 674 (CC)

Qozeleni v Minister of Law and Order 1994 3 SA 625 (E)

Shabalala v Attorney-General, Transvaal 1996 1 SA 725 (CC)

Stransham-Ford v Minister of Justice and Correctional Services 2015 4 SA 50 (GP)

S v Bhulwaana; S v Gwadiso 1996 1 SA 388 (CC)

S v Makwanyane 1995 3 SA 391 (CC)

S v Robison 1968 1 SA 666 (A)

Thebus v S 2003 6 SA 505 (CC)

Van Rooyen v S 2002 5 SA 246 (CC)

Walter v Minister of Health (judgment pending) case number 31396/2017

Legislation

Constitution of the Republic of South Africa Act 200 of 1993

Constitution of the Republic of South Africa, 1996

Internet sources

HPCSA 2023 https://www.hpcsa.co.za/Uploads/professional_practice/

ethics/Booklet_7-Guidelines_withholding_andwithdrawing_treatment_FINAL_%20March2023.pdf

Health Professions Council of South Africa 2023 Guidelines for the Withholding and Withdrawing of Treatment https://www.hpcsa.co.za/ Uploads/professional_practice/ethics/Booklet_7-Guidelines_withholding_andwithdrawing_treatment_FINAL_%20March2023.pdf accessed 10 April 2021

List of Abbreviations