MAiD in SA: DignitySA's Constitutional Challenge

As the previous instalment of MAiD in SA explained, it is clear that in South Africa our Parliament will not engage with medical assistance in dying (MAiD) unless it is directed by a court of law to do so.

Around the world, 36 jurisdictions (countries, states, provinces) have legalised MAiD and four countries are in the process of doing so. Notably, four Latin American countries — our socio-economic equals — have done so and we cannot wait any longer.

Given that we live in a constitutional democracy, our best option is to fight for recognition of the constitutional right to MAiD in a court of law. Therefore, for the last five years now, DignitySA has been:

1. Gathering resources,
2. Putting a legal team together,
3. Devising a legal strategy, and
4. Honing a constitutional argument that is supported by the best evidence.

Finally, on the 9th of April 2026, DignitySA filed its Notice of Motion, Founding Affidavit and supporting documentation (almost 1,000 pages in total). Included in these court papers are:

• Case studies (describing the circumstances of the dying process of those who would have chosen MAiD if it were legal),
• Foreign expert evidence (a remarkable international expression of solidarity and goodwill from countries on four continents), and
• South African medical expert evidence (necessary and brave).

In the court documents that DignitySA submitted we ask the Court for the following relief:

1. To declare the common-law prohibition of MAiD unconstitutional, unlawful and invalid (decriminalise MAiD), and
2. Suspend this declaration of invalidity for 24 months to allow Parliament to bring the law on MAiD in line with the Constitution (legalise MAiD).

Once notified by the sheriff of the court, respondents must decide whether they wish to oppose and then to file their answering affidavits, whereupon DignitySA will file a replying affidavit. Amici (friends of the court) may join the applicant and respondents. A court date will then be determined when senior counsel for the applicant and respondents will argue the case.

To date the HPCSA have indicated that they will oppose and the Minister of Justice and Constitutional Development has decided not to oppose and rather abide by the court's finding. We are waiting to hear what the remaining two respondents, namely the Minister of Health and the National Prosecuting Authority, will decide.

Once the court has received documents from all of the parties, it will make a decision and submit its findings to the Constitutional Court. Depending on the outcome, parties may appeal too so it's a long road ahead still.

If DignitySA's constitutional challenge is successful, Parliament will most likely be given 24 months to write a law and regulations. This will entail deciding on the limits and content of the implementation of MAiD and there will be public participation. Thankfully we have many foreign models from which to draw and learn from and our Founding Affidavit contains a wealth of international and local evidence. To read our court papers, please visit dignitysouthafrica.org/assisted-dying.