Legal History was made in South Africa – a lesson learned from the common law system!

The North Gauteng High Court was asked in an urgent application to hear South Africa's first “Right to die” case.  True to the common law tradition one does not necessarily have to wait for the legislature to enact new legislation.

In South Africa euthanasia is still illegal and sanctioned by the criminal courts. The judge of the Supreme Court however ruled, after receiving the request from a terminally ill man to protect his doctor from prosecution and disciplinary action, that he was legally obliged to develop the law on the issue instead of waiting for the legislature to enact a new law.

The Judge consequently granted the request of the applicant that the doctor who would assist him will be protected from prosecution and disciplinary action. It is expected that the ruling will set in motion the process of legalising the process of assisted dying in South Africa and that this will be the case that will test the right to die against the constitution.  

This is a clear example of the way the common law system work. A similar ruling in civil law countries will be impossible.