2.2 Why Dignity SA has no hope of appealing the Stransham-Ford case

On 6 December 2016, euthanasia lobby group ‘Dignity SA’ made three separate media statements saying they would appeal the case to the Concourt.e.g. https://goo.gl/FZfQiX Nevertheless this morning they modified this to say ‘it is possible they will appeal to the Concourt’ https://goo.gl/kVDUzR.

While their stated intention has always been to take this case to the Constitutional Court, the Supreme Court of Appeal judgment means the Stransham-Ford case is dead and buried. Dignity SA are in an emotional grieving cycle and trying to save face by talking about appealing. When reality sets in they will have to realise an appeal would be wasting valuable court time needed to hear real cases. The normal grieving cycle is denial, anger, bargaining, depression and acceptance https://goo.gl/tFREn.

* Firstly, the judgment corrected a list of serious mistakes made by Judge Fabricius, which we have listed in our press release of 6 December 2016, any one of which is enough to overturn the ruling. Fabricius made these mistakes under circumstance of the urgency of the pressured one day trial. A group of more experienced judges without urgency will not likely make the same mistakes again;
* Secondly the new evidence of the medical records of the applicant destroyed the credibility of the Stransham-Ford case;
* Thirdly, they refused to admit the additional evidence from either side on the impacts of euthanasia in other juristictions, but did say that such evidence would need to be weighed carefully if another similar euthanasia case was brought in future. New evidence is never admitted to the Constitutional Court, but only in exceptional cases is allowed in the Supreme Court of Appeal.
* Fourthly, this was a unanimous decision by five senior judges with no dissent.

The above reasons should be enough to give up hope of appealing this particular case.

Nevertheless, the court went further and made it difficult to bring another case, saying that:
i. It was desirable that issues of legal change with major complex social impacts such as euthanasia should be dealt with by parliament rather than judges.
ii. In its reasons for rejection set a high standard of evidence on which the court any future case with major social impacts, such as euthanasia, would need to be evaluated before reaching a decision to change the law.

If the above was not enough, we predicted immediately after the Fabricius ruling in a letter to the State Attorney that this ruling would destabilise the constitutional order, with the executive also disrespecting the courts. This occurred a few weeks later, when Judge Fabricius ironically precipitated a second constitutional crisis with his (legally correct) order for the arrest of Sudanese President Al-Bashir. The fact that the executive obstructed justice in this legitimate court order created a constitutional crisis, which was resolved by a high level memorandum of understanding between the Judiciary and the Executive to respect eachothers authority in terms of the constitutional principle of the separation of powers. The Constitutional Court is thus bound by their own promise to respect the separation of powers and thus must stay out of the role of parliament or lose their credibility and destabilise the whole legal system.

The Stransham-Ford case is thus over and Dignity SA will have to work through their grieving cycle and come to terms with that. If they want to try further, they need to talk to parliament or find another applicant with a new case and jump over a series of Olympic level legal hurdles set by the Supreme Court of Appeal judgement and then persuade the Constitutional Court judges to break their 2015 agreement with the Executive to respect the separation of powers. If they do that, even those who support euthanasia, will have to face the consequences of a breakdown in law and order on other issues.

Philip Rosenthal