Dr. Tobeka Mathebula is a physician working in a state subsidised hospital in South Africa.

Question

Dr. Mathebula has been working in the aforementioned hospital since 2014. In 2022, the
Choice on Termination of Life Bill was signed into law and consequently, referred to as the
Choice on Termination of Life Act 25 of 2023 (CTLA). The CTLA basically legalises the
administering of euthanasia in hospitals. According to the CTLA, a qualified physician must
administer euthanasia to a patient who voluntarily requests that her or his life be terminated.
There are however conditions set out by the CTLA that first have to be met before euthanasia
may be administered namely: (1) the medical practitioner must be satisfied that the patient
is in a medically futile position, wracked by mental and/or physical suffering and that there
is nothing that could be done to treat and consequently, end the patient’s pain and suffering;
(2) the patient must have been informed about his or her current condition; (3) the patient
as well as the physician should have consulted with at least one other physician who has thus
far been an independent party; (4) the physician has to ensure that the patient attained the
age of majority; and (5) the physician must also ensure that the patient has made the request
after properly considering the matter, and not making the decision based on coercion.
According to section 18(3) of the CTLA, it is an offence for a physician to refuse to participate
in any manner regarding the administering of euthanasia and upon conviction, the CTLA
gives the Court the authority to sentence the offender to a maximum of three years
imprisonment for refusing to participate in the administering of euthanasia. Dr. Mathebula
strongly believes that to participate in any manner whatsoever in the administering of
euthanasia substantively violates the sanctity of innocent human life and that such a violation
constitutes murder. Dr. Mathebula is considering approaching the Court for a declaration
that section 18(3) of the CTLA is unconstitutional due to the fact that it substantively violates
her right to human dignity as well as right to belief and conscience. Dr. Mathebula
approaches you for advice and more specifically, you need to advise on whether:
(1) Dr. Mabula has standing in the said matter? Explain. [6]
(2) Dr. Mabula may approach the Constitutional Court directly in the said matter?
Explain. [6]
(3) It is in the interests of justice if the said matter is brought before the Court? Explain.
[6]
(4) The Constitutional Court may have jurisdiction if a lower Court is firstly
approached? Explain. [6]
(5) An amicus curiae may be involved in the matter? Exlain. [6]
Take note of the following:
(1) Your advice to Dr. Mathebula on all of the above questions must be clear, informative,
grammatically correct and to the point;
(2) Use font size 12 with single spacing between the lines and no footnotes are required;
(3) No group assignments (meaning assignments done by two or more) are allowed;

Answer 1

(1) Yes, Dr. Mathebula has standing in the said matter. As a physician who strongly objects to the administering of euthanasia, she will be directly affected by section 18(3) of the CTLA, which essentially compels her to participate in an act that she believes violates the sanctity of innocent human life. Her right to freedom of conscience and belief, as well as to human dignity, are central to this matter and she has a direct and substantial interest in challenging the constitutionality of section 18(3).

(2) Yes, Dr. Mathebula may approach the Constitutional Court directly in the said matter. This is because the matter involves the interpretation and application of the Constitution, specifically the right to freedom of conscience and belief and the right to human dignity. These are fundamental rights that are guaranteed by the Constitution and it is therefore appropriate for the Constitutional Court to hear the matter directly.

(3) Yes, it is in the interests of justice if the said matter is brought before the Court. The matter raises important constitutional issues relating to the rights to human dignity and freedom of conscience and belief. It also has significant implications for the medical profession and for patients who may seek euthanasia in the future. It is therefore important that the matter be fully and properly ventilated before the court, so that the court can provide clarity on these issues.

(4) Yes, the Constitutional Court may have jurisdiction if a lower court is firstly approached. This is because the matter involves the interpretation and application of the Constitution, and therefore falls within the exclusive jurisdiction of the Constitutional Court. If Dr. Mathebula were to approach a lower court, that court would be obliged to refer the matter to the Constitutional Court for determination.

(5) Yes, an amicus curiae may be involved in the matter. An amicus curiae is a "friend of the court" who is not a party to the litigation, but who provides the court with information or argument that may be helpful in the case. In a matter of such public importance, it is likely that the Constitutional Court would welcome input from interested parties who may have relevant expertise or insights to share. However, the decision to involve an amicus curiae ultimately rests with the court.