Thursday 30 April 2015

Pretoria Judge authorises “mercy killing" of Cape lawyer... doctors might still be prosecuted

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.

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