1.5 Procedural decisions favour euthanasia lobby group

PROCEDURAL DECISIONS FAVOUR EUTHANASIA ADVOCACY GROUP
Trial delayed at request of applicant
Extreme urgency ruled
Doctors for Life not allowed to be respondents
Refusal to suspend the order pending appeal
The case was really about the principle and not the individual applicant
Judge refused to declare the ruling moot
Summary

JUDICIAL ERRORS AND CONTROVERSIAL ISSUES
Jurisdictional location of court
Role of the lower court versus the higher Court
Judge fails to consider the guilt or innocence of the applicant

Procedural decisions favour euthanasia advocacy group
Trial delayed at request of applicant
The trial was delayed from the initially set date by a week at the request of the applicants attorneys to allow them to obtain additional affidavits. Nevertheless, during this delay, the opposing amicus Doctors for Life were not given an opportunity to view the draft affidavits to prepare argument in defence. Therefore, the delay solely benefitted the applicant and not the equally the respondents and amicus. Given their late receipt of the affidavits, the amicus would have also benefited from more time to prepare a defence but no such delay to benefit the respondents was granted.
Extreme urgency ruled
• Extreme urgency was ruled for both the start of the trial and the duration of the trial – see above.

Doctors for Life not allowed to be respondents
• Doctors for Life, an organisation, which has a strong and direct interest in the matter, applied to become a respondent rather than just an amicus, but were refused. The interests of their members and their core mandate is directly affected by the decision. Members of Doctors for Life have been severely victimised by the State for their refusal to assist with abortion and the same could easily occur with euthanasia if legalised.
• This amicus status puts them in a weaker position than if they were respondents.
• Respondents have a right to appeal and to argue more strongly on procedural issues such as urgency, while amicus do not.
Refusal to suspend the order pending appeal
• Judge refused to suspend his court order pending appeal, which is normal in South African law.
• Even the ‘Dignity SA’ lobby group stated beforehand, they did not expect the judge would do this.
• Thankfully, the applicant reportedly died of natural causes before the court order was given, and so had no de-facto opportunity to make use of this court order allowing euthanasia.
– Had he not done so, it would have created a real ‘de-facto’ precedent.
The case was really about the principle and not the individual applicant
• The lobby group ‘Dignity SA’ who orchestrated the lawsuit, and appointed the lawyers repeatedly stated before and after the trial that the applicant, Stransham-Ford was seeking to win the case ‘in principle’ rather than for his own personal benefit. If this is the case, then it was unnecessary for Judge Fabricius to fail to suspend the order pending appeal.

• In making his decision as a single just and allowing no suspension of the order pending appeal, Judge Fabricius made his decision de-facto absolute and unaccountable to anyone else.

Judge refused to declare the ruling moot
• Despite the fact the applicant died during the trial before the ruling and before the judgment, the judge refused the request of the State to declare the ruling moot.
Summary
In allowing a delay of a week, refusing to allow Doctors for Life to be respondents, ruling extreme urgency, refusing to suspend his decision pending appeal and refusal to declare the ruling moot, judge Fabricius demonstrated extreme procedural bias in favour of the applicant.

Judicial errors and controversial issues
Jurisdictional location of court
• The applicant, his carers, all his attending medical practitioners, the hospital in which he was treated, and most of his family reside in Cape Town as is evident from his filed affidavits. He stated he wished to commit suicide at home with his family (i.e. In Cape Town). All this points in favour of the jurisdiction of the lower court jurisdiction of the Cape High Court. Nevertheless, the application was filed in Pretoria (North Gauteng) High Court.
• Why did they file in Pretoria? Did they believe they would get a more favourable outcome in this court?
Role of the lower court versus the higher Court
• In South Africa, there are four tiers of court: Magistrates court, High court, Supreme court of Appeal and Constitutional court. This is a second tier or ‘High Court’ ruling. The role of the lower court within the hierarchy is normally to uphold the existing law, with setting aside of existing law only being considered on appeal by a higher court. The exception would be in the instance of a provincial law, where it may be appropriate for the High Court to make such a ruling.
• Nevertheless, in this instance the radical departure from existing law was made by a ‘second tier’ court. Such lower courts are usually much more conservative in making changes to the existing legal dispensation.

Judge fails to consider the guilt or innocence of the applicant

• The judge failed to consider guilt or innocence of the applicant which is the normal criteria for punishment (in this case death). In doing so, he condemns a person without finding them guilty.