Development of Assisted Suicide and Euthanasia in The Republic of South Africa.
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Bachelor of Laws (LLB)
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University Of South Africa (Unisa)
This report serves to analyse the development of assisted suicide and voluntary euthanasia in the Republic of South Africa post-apartheid with reference to countries such as Belgium and the Netherlands, where the practice of euthanasia and assisted suicide has been decriminalised and
regulated by ...
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DEVELOPMENT OF EUTHANASIA AND ASSISTED SUICIDE IN THE REPUBLIC
OF SOUTH AFRICA
Article · June 2023
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Clive Brian Jaars
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,DEVELOPMENT OF EUTHANASIA AND
ASSISTED SUICIDE
IN THE REPUBLIC OF SOUTH AFRICA
CLIVE JAARS*
SUMMARY
This report serves to analyse the development of assisted suicide and voluntary euthanasia in the
Republic of South Africa post-apartheid with reference to countries such as Belgium and the
Netherlands, where the practice of euthanasia and assisted suicide has been decriminalised and
regulated by the law.
With the aid of various legal rules and principles which include but are not limited to; International
law, relevant Constitutional and legislative provisions, stare decisis, proposed commission reports
and academic writings, this report examines the necessary steps taken to regulate the practice of
voluntary euthanasia in South Africa, viz, it determines whether there is a need for Parliament to
enact a law or body of legal rules that would regulate the practice of voluntary euthanasia and
assisted in an open and democratic society that is based on human dignity, equality and freedom.
KEY WORDS
Assisted suicide,
Constitutionalism,
Dispensation,
Euthanasia,
Foetus,
Palliative care,
Right to dignity,
Right to life,
Transformative interpretation.
**
Legal analyst, aspiring advocate for public, constitutional and international law, 2020-2023 Regional Education and
Training Officer, University of South Africa. This is a follow up Article from a brief report that I published in 2019
regarding the Development of Euthanasia in The Republic of South Africa.
,ABBREVIATIONS
IC - Interim Constitution of the Republic of South Africa Act 200 of 1993.
HPCSA – Health Professions Council of South Africa.
KNMG - Koninklijke Nederlandsche Maatschappij to bevordering der Geneeskunst.
PAE – Physician Assisted Euthanasia.
PAS – Physician Assisted Suicide.
ACRONYMS
For the purpose of this report, it would only be necessary to define a few terms which are
commonly used in this literature.
Abstinence from Treatment – Refers to both to ending (life-sustaining) treatment that has been
undertaken and to refraining from beginning such treatment.
Active Euthanasia – may be defined as any form of euthanasia that is not passive. 1 viz, it pertains
to the killing or dying of another person with mercy or compassion for that person as their primary
motive.2 It is the bringing about of the death of another person with a view of ending uncontrollable
suffering, it may also refer to an act performed by a third party (medical practitioner) who
intentionally puts an end to the life of a terminally ill person at that person’s request. It involves the
administering of an orally or intravenously substance or combination of substances with the
intention of inducing death. Albeit, certain authors use the term “lethal sedation” for a slower
euthanasia it is nonetheless clear that it is a form of euthanasia with an aim that is contrary to that
of “palliative sedation”
Anorexia – pertains to the mental disorder of nutritional behaviour, characterised by a refusal to
maintain normal weight. The fear of becoming obese, or overweight, which incites people who
suffer from anorexia to follow very restrictive diets, they sporadically have episodes of bulimia or
purging in keeping with their distorted perception of reality. In essence, the enorexic person
continually sees him or herself as obese in spite of her low weight.
Assisted Suicide3 - involves the prohibition in terms section 294 of the Criminal Code but when
rendered by a medical practitioner under specific conditions it may be justified; for most purposes
having to do with its legality not distinguishing from killing a person at his or her request.
Bipolar Disorder – refers to variations of mood out of proportion with events. They attain such an
intensity that the individual no longer perceives that their exuberant mood or their anger is out of
bounds, or alternatively, that their depression is so deep that they are paralysed by it and haunted
by suicidal thoughts.
1
McQuoid-Mason Recent Developments concerning euthanasia in South Africa 1995 Law and Medicine (McQuoid-
Mason) page 7.
2
In General Schar, Olivier and Loubser The Forensic ABC in Medical Practice- a Practice Guide (1998) (“Schwar,
Olivier and Loubser) page 24, See also Oosthuizen “Doctors can Kill-Active euthanasia in South Africa “2003 Medicine
and Law (‘Oosthuizen”) page 551 one example from several where the element of terminal illness is also included.
3
Hulp Zelfdoging (Dutch translation).
, Borderline/Borderline Personality Disorder – refers to a mode of generally unstable interpersonal
relations, self-esteem and feelings, with a marked impulsiveness that appears at the beginning of
adulthood and is present in a variety of contexts. Borderline individuals make frenzied efforts to
avoid real or imagined abandonment.
Constitution - the term ‘Constitution’ has various meanings it may be referred to as an entire body
of rules codified or/and uncodified, which govern the exercise of state authority and regulates the
relationship between legal subjects and the organs of state and among individuals or organs of state
themselves. The term may also refer to a written document which contains some, or most of the
constitutional rules of a particular country or state. Moreover, a constitution is no ordinary statute.
It is the source of legislative and executive authority, it determines how the country is to be
governed and how legislation is to to be enacted, it defines the powers of the different organs of
State, including Parliament, the Executive and Judiciary as the fundamental rights of every person
which must be respected in exercising such powers. 4
Direct Euthanasia – formally contrasted with indirect euthanasia, for instance, death due to pain
relief, but now referred to simply a ‘euthanasia’.
General Practitioner – refers to a family doctor or medical practitioner in solo practice and
provides general medical care and referrals for the rest of the health-care system.
Hopeless Suffering – the term used in conjunction with ordraadlijk (unbearable) to indicate one of
the conditions of the justifiability of euthanasia and assistance with suicide. It usually caries the
specific additional meaning if irreversibility – lacking any prospect of improvement – but it is also
sometimes used in the more general sense of ‘without hope’ as in; ‘abandon hope, all ye who enter
here’.
Indirect Euthanasia – the term formerly used to refer to cause death as a result of the use of pain
killers (usually morphine) in doses known to be likely to shorten life, and it is no longer regarded
as a form of euthanasia.
Involuntary Euthanasia – euthanasia that is performed against the real and informed wishes of the
person to be euthanized which is commonly known as murder.
Morphine – refers to a substance extracted from opium capable of relieving intense pain – by
working on the central nervous system and inducing sleep. When used in the proper dosage, it has
no effect on the duration of the patient’s life.
Natural Death – under this context refers to death resulting from ‘internal causes’; if the
responsible doctor considers the death of a patient a natural one, he or she can file a certificate of
natural death, which permits burial of cremation without further legal control.
Obsessive Compulsory Disorder – OCD is an anxiety disorder characterised by obsessions,
compulsions or both. In an attempt to repress their obsessions, compulsions or both. In an attempt
to repress their obsessions, the afflicted person feels obliged to engage in repeated gestures and
compulsions; these are genuine rituals that can take up to several hours a day and that interfere in a
4
S v Makwanyane 1995 (3) SA 391 (CC) [15].
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