Understanding Living Wills in South Africa: Legal Status, Importance, and Considerations

 

Introduction

A living will, also known as an advance directive, is a document that expresses a person's wishes regarding medical treatment in situations where they are unable to communicate their decisions where:

• They lack the mental capacity to refuse treatment; and
• Their quality of life is very poor and there is no hope of recovery or even of significant improvement.

Current Legal Framework

In South Africa, the legal status of living wills remains complex and somewhat ambiguous.

Living wills are not officially recognized by South African law and have no legal force. However, the South African Constitution acknowledges every individual's right to bodily and psychological integrity, which includes control over one's own body.

Medical Practitioners' Perspective

The Health Professions Council of South Africa implicitly recognizes living wills in its "Guidelines for the Withholding and Withdrawing of Treatment." These guidelines encourage patients to document their wishes regarding future care in critical circumstances, and the South African Medical Association has advised doctors that they can comply with a living will when a patient is in a permanent vegetative state.

Importance of Living Wills

Evidence of Patient's Wishes

A living will is the only written evidence of a person's desires regarding end-of-life decisions, especially when they are in a coma or vegetative state.

Clarity in Decision-Making

Living wills help individuals clarify their decisions about quality of life and can appoint a specific person to make necessary decisions on their behalf.

Prevention of Unwanted Interventions

Without a living will, doctors, courts, or others may take steps contrary to what the person would have wanted.

Limitations

It's important to note that a living will:

• Cannot include directives for active euthanasia or physician-assisted suicide.
• Does not allow another person to make decisions on behalf of the patient (this requires a healthcare proxy).
• Is not a request for basic care to be withdrawn.

·        Living wills may include requests for Do Not Resuscitate (DNR) Orders under specific circumstances. However, DNR orders differ from advance directives as they are written by treating physicians.

Recommendation for Have a Living Will

Despite the lack of formal legal recognition, having a living will in South Africa is highly recommended for several reasons:

• Documentation of Wishes: It provides clear evidence of your end-of-life medical treatment preferences.
• Guidance for Healthcare Providers: It assists medical professionals in making decisions aligned with your values.
• Reduced Family Burden: It can alleviate the emotional stress on family members who might otherwise have to make difficult decisions on your behalf.
• Potential Legal Weight: While not legally binding, courts and healthcare providers may consider the contents of a living will when making decisions.
• Preparation for Future Legislation: As discussions around end-of-life decisions continue, having a living will may position you well for any future legal changes.

When creating a living will, ensure it is clear, precise, and regularly updated. Consider consulting with medical professionals, legal experts, and if relevant, religious advisors to ensure your document is comprehensive and reflects your true wishes. It is advisable to review living wills regularly to ensure they reflect current feelings and account for advancements in medical science and developments in our law.

Summary

While living wills are not legally recognized in South Africa, they serve as crucial documents expressing an individual's wishes for end-of-life care. The legal landscape may change in the future, but for now, living wills provide valuable guidance to medical practitioners and family members. Despite their current non-binding status, having a well-crafted living will can significantly influence medical decisions when you're unable to communicate your preferences.

South Africa's Constitution and Bill of Rights: A Beginner's Guide with Recent Landmark Cases

Introduction

South Africa's journey to democracy is a remarkable story of transformation. At its heart lies the South African Constitution, adopted in 1996, which serves as the supreme law of the land. This article provides a straightforward introduction to South African Constitutional Law, focusing on its historical context, key features, and practical implications for everyday life, including recent landmark cases that showcase the Constitution in action.

Historical Context

The adoption of the South African Constitution marked a significant shift from the oppressive apartheid regime to a democratic society. Before 1994, South Africa was governed by laws that enforced racial segregation and discrimination. The new Constitution was designed to dismantle these injustices and promote equality, human dignity, and freedom for all South Africans.

Key Features of the Constitution

The South African Constitution is celebrated for its progressive nature and comprehensive approach to human rights. It establishes the framework for governance and outlines the separation of powers among the legislative, executive, and judicial branches.

The Structure of Government

• Legislative Branch: Parliament, including the National Assembly and the National Council of Provinces, makes laws.
• Executive Branch: The President and Cabinet implement laws and oversee government operations.
• Judicial Branch: Various courts, including the Constitutional Court, interpret laws and ensure they align with constitutional principles.

Supremacy of the Constitution

The Constitution is the highest law in South Africa. Any law or conduct inconsistent with it can be challenged and struck down by the courts, ensuring all branches of government operate within constitutional limits.

The Bill of Rights

The Bill of Rights is a cornerstone of the Constitution, guaranteeing fundamental rights to all individuals within the country.

Key Rights Protected

• Equality: Everyone is equal before the law.
• Human Dignity: Every person's dignity must be respected and protected.
• Freedom of Expression: Individuals can express themselves freely, with certain limitations.
• Right to Privacy: Protection against unlawful searches or seizures.
• Access to Information: Citizens can access information held by the state or needed to protect rights.

Balancing Rights

While these rights are protected, they are not absolute. The Constitution allows for reasonable limitations where necessary in an open and democratic society.

Constitutional Institutions

Several institutions support democracy and uphold constitutional values:

·        The Constitutional Court

As South Africa's highest court on constitutional matters, it interprets constitutional provisions and ensures laws and government actions comply with constitutional standards.

 

·        Other Supporting Institutions

Bodies like the Public Protector, Human Rights Commission, and Electoral Commission work alongside the courts to safeguard democracy and protect citizens' rights.

Recent Landmark Cases

Two recent cases highlight how the Constitution continues to shape South African law and society:

Dual Citizenship Rights Case

In Democratic Alliance v Minister of Home Affairs and Another, the Supreme Court of Appeal declared section 6(1)(a) of the Citizenship Act invalid in June 2023. This law previously caused South Africans to lose their citizenship upon acquiring foreign nationality. The Constitutional Court reviewed this decision on November 5, 2024 and we’re waiting for the judgment. If upheld, it would affirm the right to dual citizenship, potentially impacting thousands of South Africans who wish to retain their South African identity while holding another nationality.

Sexual Offences Act Ruling

On September 30, 2024, the Pretoria High Court delivered a landmark judgment declaring several sections of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 unconstitutional. This ruling addresses how the law deals with sexual violence cases where the perpetrator claims an unreasonable belief in the complainant's consent. The court recognized complex psychological factors that may prevent survivors from clearly communicating non-consent, particularly in cases of trauma-induced responses. This judgment represents a significant shift towards more trauma-informed legal standards in sexual assault cases.

These cases demonstrate how constitutional law affects daily life in South Africa:

• The dual citizenship case could impact South Africans living abroad or those considering acquiring another nationality.
• The sexual offences ruling may lead to changes in how consent is understood and applied in legal proceedings, potentially affecting how sexual assault cases are handled.

Conclusion

The South African Constitution is a living document that reflects the country's commitment to justice, equality, and freedom. By understanding its key features and how they apply in real-world situations, as seen in recent landmark cases, citizens can better appreciate their rights and responsibilities within a democratic society. This knowledge empowers individuals to participate actively in civic life and contribute to building a more equitable nation.

SA Legal Malpractice: Constitutional Court Ruling on Prescription in Legal Professional Negligence

Introduction

The Constitutional Court of South Africa's 2024 ruling in Le Roux v Johannes G Coetzee & Seuns [2024 (4) SA 1 (CC)] marked a significant departure from established prescription law by creating an exception to Section 12(3) of the Prescription Act 68 of 1969. The Court held that in cases involving erroneous legal advice or failure to execute a mandate by a lawyer, prescription does not begin until the plaintiff becomes aware of the legal conclusion that the advice or execution was incorrect, effectively considering knowledge of this legal conclusion as a "fact" for prescription purposes. This decision bypasses previous case law and the Act's clear wording, which had stipulated that prescription starts when the creditor knows or should have known the facts giving rise to the debt.

Facts of the Case

Background

• Mr. Steenkamp granted Mr. and Ms. Le Roux an option to purchase his farm.
• The option could be exercised within two months of Mr. Steenkamp's death.
• Mr. Steenkamp passed away in September 2003

Initial Legal Proceedings

• After Mr. Steenkamp's death, the Le Roux’s consulted attorney Mr. Coetzee.
• They mandated Mr. Coetzee to provide legal advice and exercise the option on their behalf.
• Mr. Coetzee agreed and advised that no signatures were necessary.
• In late September 2003, Mr. Coetzee wrote to Mr. Steenkamp's executor to exercise the option

 Discovery of Prior Sale

• It was discovered that Mr. Steenkamp had already sold and transferred the property to a Mr. Nel before his death, breaching the option agreement.
• This led the Le Roux’s to initiate legal proceedings against Mr. Steenkamp's executor and Mr. Nel to enforce the option and claim transfer.

Revelation of Defective Option Exercise

• During the proceedings against the executor and Mr. Nel, in November 2007, the Le Roux’s learned that Mr. Coetzee's exercise of the option was defective and resulted in a nullity.
• The Northern Cape High Court dismissed the Le Roux’s action in early September 2009.

Legal Action Against Mr. Coetzee

• Later in September 2009, the Le Roux’s served summons on Mr. Coetzee for breach of mandate.
• Mr. Coetzee responded with a special plea of prescription, relying on Section 12 of the Prescription Act

Court Proceedings and Findings

Northern Cape High Court Decision

• The Northern Cape High Court agreed with the Le Roux’s and dismissed Coetzee's plea of prescription.
• The court granted Mr. Coetzee leave to appeal to the Supreme Court of Appeal (SCA)

Supreme Court of Appeal Ruling

• The SCA overturned the High Court's decision.
• It relied on precedents stating that a claimant only needs knowledge of facts, not legal conclusions, for prescription to commence.
• The SCA ruled that the Le Roux’s had the necessary knowledge when Coetzee wrote to the executor and when the option lapsed

Constitutional Court Appeal

The Le Roux’s sought leave to appeal to the Constitutional Court. The key issue was whether knowledge of the legal conclusion (breach of mandate or erroneous advice) should be considered a "fact" under Section 12(3) of the Prescription Act for prescription to begin

Constitutional Court's Findings

1. Inclusion of Legal Conclusions as Facts:
• The court ruled that knowledge of legal conclusions could be considered "facts" for prescription purposes in actions against legal practitioners
2. Equalizing Professional Standards:
• This ruling aligns the position of legal practitioners with that of auditors and medical practitioners in negligence actions
3. Consistency with "Knowledge" Requirement:
• The court found it inconsistent with the "knowledge" requirement for prescription to begin without awareness of erroneous advice or mis-exercise of mandate
4. Justice Considerations:
• The court deemed it unjust for prescription to run without knowledge of the legal practitioner's negligence

Conclusion

The Constitutional Court's decision in Le Roux v Johannes G Coetzee & Seuns marks a significant development in South African prescription law, particularly concerning actions against legal practitioners. By ruling that knowledge of legal conclusions can be considered "facts" for prescription purposes, the court has established a more equitable standard for clients seeking redress for professional negligence. This judgment aligns the treatment of legal practitioners with other professionals and ensures that prescription does not unfairly prejudice clients who may be unaware of the legal implications of their attorney's actions. The decision underscores the importance of balancing the rights of legal practitioners with the need for accountability and fairness in the legal profession.