1.6 Manufactured & reckless urgency

MANUFACTURED AND RECKLESS URGENCY

Applicants delayed filing case until last minute
Inadequate time for respondents and amicus to prepare
Only three working days for opposition to prepare
Urgency followed by trial delay to benefit one side only and then urgency resumed
No time to collect and file expert affidavits
Duration of trial
Real admitted reason for urgency
Urgency ruling
Failure of the applicants to notify opposition of the application

Applicants delayed filing case until last minute
• The applicant was diagnosed with terminal cancer in February 2014.
• The lobby group Dignity SA announced their intention to take the matter to the Constitutional Court in August 2014.
• The applicant began working with the lobby group to prepare for the case in November 2014.
• The applicants legal affidavits, apart from supplementary medical affidavits were completed in March 2014.
• The case was only filed towards the end of April 2014.
• It is thus argued that the urgency was created artificially by the applicants and they should have filed earlier if they were so concerned about urgency.

Inadequate time for respondents and amicus to prepare

Only three working days for opposition to prepare
• The trial started with only three working days from filing of founding affidavit to start of trail.
• The applicant lobby group and attorneys refused to release their affidavit to anti-euthanasia amicus or interest groups, despite numerous requests citing weak excuses.
• The applicants attorney when asked by a writer covering the case to see the affidavit asked if it would be shown to the principal amicus Doctors for Life. This appears to indicate a deliberate intention to hide information from their opposition.
• The respondents (the State and Health Professions Council of South Africa) were served notice and given sight of the draft affidavits with six working days before the trial.
• The reason given for last minute filing of affidavit was that they were waiting for a final medical affidavit. Nevertheless, they could have released the remainder of the affidavits in the interim.

Urgency followed by trial delay to benefit one side only and then urgency resumed
• The trial date was delayed a week to allow the applicants doctor to take legal advice. The initial trial date was argued as urgent. This delay was condoned to benefit the applicant, but the opposition was not allowed to use the time to see the remainder of the affidavit. When the opposition wanted more time, it was not granted.
• The question is if the case urgent at the time of the original trial date, why did the applicant delay it by a week?
No time to collect and file expert affidavits
• A trial of this nature requires the collection of the numerous expert affidavits to support argument. Nevertheless, the time frames did not allow the respondents and amicus to receive or file all the expert affidavits they had in process. Even one more day would have made a significant difference but was not allowed by the judge.
Duration of trial
• Urgency ruling: The judge ruled the case as urgent, before 11 am (i.e. within an hour of the start of the trial at 10 am), while the urgency itself should have been a seriously debated issue.
• Indication on merits: By 11 am (i.e. within an hour of the start of the trial) the judge had begun speaking to the merits of the case and it was already evident before he had heard argument on the merits that he was going to rule in favour of the applicant.
• Court order: The entire trial lasted only one day, with the court order only being postponed to the next day on request of the state advocate to consult on certain matters with the state. A case of national and international significance was thus decided de-facto in one day.
Real admitted reason for urgency
The real reason for urgency was not actually that the applicant was afraid of imminent loss of dignity and pain as his health deteriorated. The real reason was they feared their applicant would die before the case got to court, as had their previous candidate applicant. They announced after his death that he had deliberately tried to stay alive till the court date.

Urgency ruling
• Despite the fact that two amicus joined the case, urgency was ruled. Usually, when additional parties join a case, it automatically slows down ‘urgency’ to allow for a more considered decision.
• It was not possible within the time frames for certain evidence to be filed.
• Usually such urgency is only ruled in instances where life, property and reputation are at imminent risk, which was not the case in this instance.
• The extreme urgency ruled on at the start of the trial, effectively assumed the outcome of the whole case.

Failure of the applicants to notify opposition of the application
• A long list of interested organisations submitted formal objections to the South African Law Reform Commission when consulted in 1997 against proposals to legalise euthanasia. This list was sent to the attorneys of the applicant with the request they be notified. They were not notified. Further, there are numerous organisations opposing euthanasia and assisted suicide which maintain a high public profile in the media, on the internet and in various lawsuits. None of these were notified by the applicant. Many more may have wished to join the case.
• The ruling applied for does not only impact the right to life, but the right of professional bodies to take disciplinary action against their own membership. Other professional bodies may wish to join the case but were not notifed.
• It appears the applicants were deliberately trying to slip the case in quickly ‘under the radar’ to avoid giving the opposition time to respond.