‘Some people die a gentle and easy death’: Court bid challenges SA’s ban on assisted dying
· Citizen
South Africa’s prohibition of assisted dying is now at the centre of a constitutional challenge, with critics arguing that it infringes on fundamental rights and human dignity.
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Non-profit organisation (NPO) DignitySA confirmed on Thursday, 9 April, that it has filed an application in the Gauteng High Court to have the country’s current “blanket prohibition” on assisted dying declared unconstitutional and invalid.
Under existing South African law, assisted dying is treated as murder.
The ministers of the Department of Health and the Department of Justice and Constitutional Development, the National Director of Public Prosecutions (NDPP), and the Health Professions Council of South Africa (HPCSA) are cited as respondents.
DignitySA seeks to legalise assisted dying
At the heart of DignitySA’s application is the argument that the Constitution supports a right to medical assistance in dying under certain conditions.
During Thursday’s media briefing, DignitySA co-founder Willem Landman said the organisation’s position is grounded in four rights in The Constitution of South Africa, which it believes collectively support such a right.
He pointed out that the current legislation position stands in direct conflict with these constitutional protections.
“We have a standoff. Our reigning law, our common law, says it’s murder.
“We believe our constitution says it is a right that we have in the appropriate circumstances and with the necessary safeguards in place. This contradiction needs to be resolved,” he said.
Landman criticised what he described as unequal and undignified experiences of death under the current system.
The professor argued that losing one’s dignity at the end of life is “disrespectful and unacceptable”, and emphasised that “more compassion” should be shown.
“We need the recognition of constitutional rights. We need more equal treatment.
“Some people die a gentle and easy death. Others, for no fault of their own, die a very difficult death, and we believe this is unjust.”
He explained that DignitySA seek to prove that medical assistance in dying is not fundamentally different from palliative care.
Proposed legal reform
According to Landman, the NPO is seeking an order that would require lawmakers to introduce legislation governing assisted dying.
This should be carried out within two years during the period in which the declaration of invalidity is suspended.
“If the court declares medical assistance in dying as unlawful, and unconstitutional, and invalid, there will be a vacuum.
“The court cannot write a law that would govern, and manage, and control medical assistance in dying in South Africa with all the safeguards in place.
“So we ask the court to direct Parliament to write a law legalising medical assistance in dying within 24 months,” he said.
He explained that DignitySA aimed to show that medical assistance in dying is not fundamentally different from palliative care.
“We believe they are on the same continuum, that they are synergistic and should be harmonised.”
Personal cases
DignitySA’s court papers include a series of case studies intended to illustrate the human impact of the current legal framework.
It submitted details of 11 deceased individuals, along with one living applicant, Dieter Harck, who is living with motor-neurone disease.
The examples cited include Carol de Swardt, who chose assisted dying in Switzerland; and former Inkatha Freedom Party (IFP) MP Mario Oriani-Ambrosini, who died by suicide following a lung cancer diagnosis.
The organisation argues that their experiences reflect what it calls the “enforced suffering” created by the ban on assisted dying.
Landman said the issue has been on parliament’s radar for decades, yet no meaningful legislative steps have been taken.
“A court order is necessary to compel the state to remedy these constitutional defects expeditiously.”