Thursday, 30 April 2015
The authorisation of the euthanasia of the cancer patient is not the end of it.
The life of a Siamese twin depended upon the killing of their sibling. In Great Britain, the courts were asked to authorise the slaying of the marked out sibling twin. The courts created something never attempted before, in authorising the killing. The judgement set out a judgement without precedent, a judgement that future cases could not reference as a binding authority. This is something the courts attempted, in an authorised, legal murder of a little child, to save the life of an equally little child.
The standing law in South Africa is that if you kill a person out of feelings of mercy to the victim, you are convicted of murder, but are given a minimal sentence.
A Pretoria judge, Hans Fabricus, has authorised the euthanasia of a lawyer, 65 year old Adv. Robin Stransham-Ford, who practices law in Cape Town. The judge attempted something similar to the British court, setting out that each future case must be decided on its merits.
News report that the judgement set out that the doctors would neither be prosecuted nor convicted, nor held civilly liable for their intentional killing of a cancer patient.
Therein lies the problem. It is set out by our system of government that it is the role of the National Prosecuting Authority to decide whether to prosecute. The law furthermore states clearly, through precedent, that euthanasia is still murder, that is to say, no matter your motive, you may not intentionally kill another human being without justification. Cases where people have sought legal advice and acted in accordance with it, while still breaking the law, have found the violator of the law still guilty.
Can a judge authorise a battered wife to kill her husband? Can it authorise a police team to assassinate a kidnapper or criminal? The problem with the judgement authorising the killing of the lawyer, is its shady quality. The real precedent if it comes will occur if the prosecutor decides to prosecute the doctors. Then, the courts will need to decide whether a judge can issue a death warrant by authorising killings which oppose standard law. Further, the facts are not at issue yet, the killing is not yet done, the judge might well have pre-empted an issue, and further his decision could be viewed by courts as merely legal advice, and thus not binding.
One would have expected a Capetonian judge to adjudicate such a matter, of note is that the judge is question is a Pretoria based judge, and yet, he is deciding on the fate of a Capetonian. Perhaps there is also an issue of physical territorial jurisdiction beyond that of basic concepts of jurisdiction. It would take a brave or reckless doctor to be willing to be the test case in this matter. Otherwise, we might find ourselves in a country where any odd member of the judiciary issues authorisation for any number of usually illegal activities, from killings, to burglary, to any number of cases. An attempt to pre-judge or authorise a series of events, certainly may not stand the test of time.
Ultimately the real case is yet to come. It will likely follow on police sirens, and the injection of a green substance resembling Spar Letta Cream Soda.
Nothing in this article constitutes legal advice.
Who is Marc Evan Aupiais?Attorney; Writer; Enthusiast of Germanic, Celtic, & Romance languages, with a love of exploring law, speech, legal systems, linguistics, sociology, & int. news.
I have always been fascinated with the law. By chance, it happens to be my field. I am an admitted attorney of the High Court of South Africa, as of 28 January 2016.
It was my fellow students' suggestions, in the final years of school, that I might be suited to a career in law, along with long discussions with a friend of mine - which imbued me with a keen interest in the history, language, and laws of the Roman Empire - that made me realise that law was the choice of career that best suited the ideas and plans I had for the future. I enrolled in an LLB degree at Wits University and subsequently graduated Bachelor of Laws a few years later.
I completed, with distinction, the Law Society's Legal Education and Development (L.E.A.D) School for Legal Practice program. I am pleased to have had the privilege of having served at two very different firms during my articles, giving me a much broader experience of work in the profession.
I believe success requires not just hard work, but intelligence, perseverance, humility, integrity, ingenuity, diligence, a strong work ethic, and the courage to request the assistance of those better-versed in a matter, or field.
I am passionate about the place of my birth, South Africa and am proud to be a patriot and citizen of this diverse and beautiful nation. I consider myself a global citizen and keep connections in a number of different nations across the world. Communicating with people from other cultures, I believe, has aided me to have a more open-minded approach in so far as how I see and interact with the world.
The cultures and legal systems, morals, and courtesy systems, languages, intricacies and religions of South Africa and of the world, are subjects I love to research. I extensively enjoy reading and writing, and in keeping abreast with important events occurring in other countries, I find my knowledge of other languages, especially French, to be quite useful.
Law & Career
Law firms I have worked at include: DL Wilson Attorneys in Randburg North, Desmond Barry Attorneys in Morningside, Sandton, Botha & Sutherland Attorneys in Aukland Park, Johannesburg. I currently work as a Consulting Attorney for Serina Govender Inc. Attorneys-at-Law. My professional website will tell you more about me, where you might want to subscribe to my professional blog . I also edit and write for the SACNS, write breaking news for a multinational service called InfosNews Breaking News, and act as a correspondent for the popular french language Les News service.
Novels I have written include
A Lesser Instinct | My first foray into the world of long form fiction.
Read it without payment - on Scribd.
Podcasting and YouTube
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