When Lawyers for Human Rights (LHR), a human rights advocacy and litigation group based in Johannesburg representing many of the detained foreign nationals, attempted to consult with their detained clients they were barred from doing so by the police and were forced to obtain a court order in order to meet with their clients. Fearing that several of their clients had already been unlawfully deported, LHR again appeared in court to obtain interdicts preventing any such deportation. Despite the interdicts, several detained immigrants were unlawfully deported without any form of hearing or legal representation.

Unfortunately, this is not the only incident in which the rights of foreign African nationals have been ignored by the police during the course of conducting an operation with an ostensibly legitimate purpose. Nor is it the only attempt made by the State to argue that foreign nationals have drastically different rights to South African citizens. In 2012, in Limpopo, the police initiated a policy called “Operation Hardstick” with the aim to close businesses that were operating without requisite permits. In carrying out this policy, police closed 600 businesses, many with valid licenses, confiscated equipment and stock, and arrested traders and their employees.  During these raids, police further told traders, predominantly of Somali and Ethiopian origin, that foreigners are not permitted to operate businesses in South Africa and should leave the municipality.

The matter was brought before the courts by several Somali and Ethiopian community organisations and individuals. They asserted that as refugees or asylum seekers they were entitled to apply for and be granted licences to trade as small shopkeepers.  Furthermore, they argued that they had the right to be treated with dignity, as enshrined in the South African Constitution and that by depriving them of a legitimate source of income, police action led to the decline in their standard of living and thus deprived them of their dignity.

Various national and provincial state institutions and ministers which stood as respondents in the matter contended that asylum seekers and refugees do not have the same rights as South African citizens and that, specifically, the right to self-employment is reserved exclusively for South African citizens. The matter eventually reached the Supreme Court of Appeal which handed down a judgment in September 2014. The Court prefaced its judgment with a description of instances of xenophobic pressure exerted by local business forums on the State before Operation Hardstick was adopted and which presumably contributed to the manner in which the police carried out the policy.  The Court further pointed out that the targeting of businesses which held valid licences was done despite the fact that the policy’s stated objective was the removal of unlicensed businesses. The SCA relied upon previous Constitutional Court judgments which recognise that rights extend to non-nationals, including illegal immigrants, while present in South Africa, except for those that refer specifically to citizens. This includes the right to dignity and, with only a few rational exceptions, the right to seek employment.

The actions of the police services in conducting both Operation Fiela and Hardstick, as well as the unheeded judicial rulings, indicates that, at least with respect to the human rights of foreign nationals, the South African Constitution and the norms it enshrines are yet to adequately infuse bureaucratic decision-making.

The habit of the democratically elected institutions in South Africa, being Parliament and the Executive, has been to leave the politically controversial questions for the courts to answer. This has been the case with regard to the death penalty, and it now appears to be the case with euthanasia. While the South African Law Commission in 1998 published a report on euthanasia accompanied by draft legislation that would govern the practice, these were both ignored and no legislation was ever passed. As a result, euthanasia in South Africa has been outlawed by the courts and those who assist in the act may face prosecution. However, the court cases that concern the practice were all decided prior to the enactment of the Constitution. Therefore, the legal position was notionally open to challenge which was precisely the aim of Robert James Stransham-Ford, a lawyer suffering with terminal cancer. The matter was heard before the High Court in Pretoria and the court took the bold step of allowing Stransham-Ford to take his own life with the assistance of his physician. The Minister of Justice and the National Prosecuting Authority have both indicated their intentions to appeal.

In granting Stransham-Ford his urgent application, the court begins by highlighting what it sees as an inconsistency in the law. On the one hand the law prohibits actively assisted suicide or euthanasia. On the other hand the law allows life sustaining treatment to be withdrawn in order to cause death. The court, in taking a consequentialist perspective, does not recognize a distinction between these actions as both result in the same outcome: the death of the patient. Accordingly, the court suggests that if these actions are equivalent in their consequences then there is no reason to prohibit the one and allow the other.

Irrespective of this position, however, the court attempts to establish a rights-based reason for permitting euthanasia by confirming that the right to life must include the right to a life with dignity. Coupled with this is the acceptance that the notion of dignity must be thought of as subjective in nature. Therefore, it is irrelevant whether others believe that the natural consequences of cancer permit a dignified death. What is important is if Stransham-Ford believed that he still possessed the dignity necessary to make his life worth living or not.

The latter point is important as it launches the court into the question of individual autonomy and what choices a person can make with respect to the life he or she lives. The court points out that autonomy extends to most aspects of a person’s life: whether one marries or divorces; the lifestyle choices one makes; and whether one consents to medical treatment or not. With this in mind, the court reasons that such autonomy should necessarily extend to the manner in which a person dies.

There are several interesting features of this case which may be considered should this matter proceed on appeal, only some of which can be dealt with here. Firstly, and as a counter-point to the notion of autonomy, the right to life may be thought of as inalienable. In other words, it is a right that no-one, even with the consent of the possessor of that right, can abridge. This would lead to the question of whether a fundamental right can be waived. In addition, one could find fault with the consequentialist notion that euthanasia and the removal of life sustaining treatment are without difference. This equivalence has sparked debate around whether it is morally worse to do harm or to allow harm to be done. Some academics have argued that distinction lies in the intent of the assisting physician. In other words, that in the case of euthanasia, a physician necessarily intends to kill the patient. On the other hand, in the case of removal of life sustaining treatment, the physician may only intend to abide by the patient’s wishes.

Ultimately, a court can only decide on the constitutionality of euthanasia at the level of principle. If the courts decide that euthanasia should be permitted, it is imperative that the process is adequately regulated. This requires the passing of legislation by Parliament and its adequate implementation by the executive and it would not be surprising if the courts mandate that this occur. As a result, these two branches of government cannot hide from this issue much longer.