View Online  |  Forward Newsletter  |  Print to PDF
September 2019

Dear Client / Geagte Kliënt

What is a Living Will?

When a patient loses the capacity to make a decision whether to allow or refuse medical treatment and that patient gave instructions (at a time when he/she had the mental capacity to make decisions) to refuse specific medical treatment or treatment which will keep the patient alive by artificial means, the question arises whether such instructions should be honoured and enforced.

Living Wills, classified as advance directives, have been used to express people’s desire not to be kept alive by artificial means or through prolonged medical treatment if a situation arises where they are in a coma, in a vegetative state and regarded as having no metal capacity to make decisions for themselves. A living will can also be used to state whether you would like to donate your organs or tissue to help others live or if it can be used for research purposes. These things are important although they are not always pleasant to think or talk about, but then again, neither is drawing up your Last Will and Testament. A Living Will and a Last Will and Testament are not one and the same thing and the latter is only enforceable when you die and deals with bequeathing your assets. A Living Will can also not be substituted by a General Power of Attorney which becomes invalid once a patient becomes mentally incompetent. 

Living Wills are currently in the news, because a National Health Amendment Bill has been put before Parliament to clarify their legal status. They are currently not recognised as legally enforceable instructions in South Africa and their status is unclear. They are also not regulated by the Wills Act or any other legislation or statute. There is also no Common Law authority on the validity of a Living Will. Failure to Legislate this has led to much uncertainty and confusion. What is the purpose of having a Living Will then if it can’t be enforced? Well, at the moment, the importance of having a Living Will lies in the fact that it can be used to provide evidence of your desire not to receive medical treatment which may be of great help to a family member called upon to make a decision for you and doctors should at least take it into consideration. Some doctors, however, fear litigation and criminal charges and will rather try to revive and treat a patient even if they are aware that a patient has a Living Will in which the patient refused medical treatment.

Notwithstanding the current uncertainty about Living Wills, the National Health Act 61 of 2003 affirms the right to refuse medical treatment even if it shortens your life. The Act also specifies which of your relatives can make medical decisions for you should you be unable to do so yourself. An amendment to the Act has been proposed to clarify the status of Living Wills and to protect medical professionals against criminal prosecution should they follow instructions expressed in a Living Will.

In Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC). The Constitutional Court (CC) held that the right to life did not impose a positive obligation on the state to provide lifesaving treatment to a critically ill patient. Hence the right to life is not an unqualified obligation to continue living, and therefore, people can waive their right depending on circumstances.

Sybrand Strauss in Doctor, Patient and the Law 2ed (Van Schaik 1984) at p 387 states that ‘in principle every person is legally entitled to refuse medical attention, even if it has the effect of expediting his death. All that is required is that the declarant at the time of making his refusal known is compos mentis. The declaration remains valid even though the declarant may at a later stage become non compos mentis as a result of physical or mental illness or for any other reason.’

Before approving or amending any laws in this regard, its impact on some of our fundamental human rights entrenched in the Constitution of the Republic of South Africa will need to be considered. These rights are: the right to life; the right of the person to preservation of his or her dignity; the right to freedom and security of the person, in particular the right to bodily integrity; the right to privacy; and the right to equality and freedom from discrimination.

There are also some ethical, moral and religious concerns raised by the public and the broader community regarding the refusal to receive future medical treatment which could mean that even if legal reforms validate advance directives (Living Wills) it may very well find itself not being honoured and enforced in all circumstances. 

A Living Will, unlike a Last Will and Testament, is not something to be kept secret, private and locked away in a safe. It is something to be shared. It is advisable to inform your family members about your desire and to hand a copy of your Living Will to at least one or two close family members and to your doctor to keep on file.

Feel free to contact us at Van Zyl Kruger Attorneys should you wish to have a Living Will drawn up for yourself. 

Greetings / Groete

Hennie, Eberhard & Cheryl-Anne  |  Directors
Orders Relating To The Acquisition And Disposal Of Property, Common Areas And Exclusive Use Areas
Danny van Zyl, associate attorney at Van Zyl Kruger Inc, was recently awarded his Master of Laws Degree from the University of Stellenbosch and wrote his thesis on the Community Schemes Ombud Service Act 9 of 2011. He shares certain aspects of his thesis with us in a series of articles to be featured in the next few newsletters.

Click Read More link to view 
Read More
The Remarkable Legacy Of CICERO’S Slave  
Silence is one of the great arts of conversation. - CICERO

As Tiro was desperately trying to follow the pace of his master, who was walking around the Forum Romanum and delivering yet another fascinating, memorable and deeply philosophical, oratory contribution to eager ears, Tiro realised that he was definitely missing words and losing brilliant concepts. He needed to devise a faster system of taking dictation, otherwise the style of argument and wisdoms of his brilliant master, might be lost forever. 

It suddenly came to him as he the pace slowed to a halt at the Rostrum and Tiro looked down at his notes. He noticed how his handwriting “on-the-run” had turned into scribbles and drawls. What if he could generate a set of symbols to encapsulate whole words or often-used phrases? His master’s speeches seemed full of just such “favourite phrases” and repetitive legal- and political jargon…
Read More
Jou Testament: Wat jy mag bepaal en wat nie.
‘n Behoorlik opgestelde en verlyde testament (jou “Laaste Testament en Wilsbeskikking”) is die enigste manier waarop jy kan verseker dat daar behoorlik na jou geliefdes omgesien word wanneer jy nie meer daar is nie.

Die belangrikste om te onthou is dat ‘n geldige testament die enigste manier is waarop jy aanwysings kan gee oor wie van jou gaan erf en wat hulle van jou gaan erf. Is daar enige beperkings op hierdie Testeervryheid? Kan jy byvoorbeeld jou gade onterf? Wat van jou kinders? Wie bepaal wie die begunstigdes van jou pensioen- en aftreefondse gaan wees?

Hierdie is gewigtige vrae en ons bespreek die antwoorde daarop met verwysing na ‘n aantal belangrike hofuitsprake oor hierdie onderwerp. Ons kyk ook na die algemene regsbeginsels waarvan jy kennis moet neem.
Read More
Huisbouers – die Kontrakteur moet by die NHBRC registreer.  
Of jy nou ‘n residensiële eiendomsontwikkelaar is, jou eie huis bou, of ‘n bouer/kontrakteur aanstel om dit te bou, moet jy weet dat dit uiters belangrik is om aan die Wet op Beskermingsmaatreëls vir Behuisingsverbruikers en die  vereistes daarvan te voldoen. Dit sluit registrasie by die NHBRC en die betaling van inskrywingsgelde in.  

Dit is belangrike wetgewing, ontwerp om “beskerming te bied teen onbevoegde bouers en teen die oprigting van huise met strukturele defekte”. Versuim om aan die Wet se bepalings te voldoen hou ernstige en nadelige nagevolge in.

Ons bespreek twee onlangse en belangrike hofsake wat handel oor die vraag of die Wet op bouers wat trusts is, asook op “koop-om-te-verhuur” ontwikkelaars, van toepassing is.
Read More
‘n Woord vir September: Uit die HAT
sprankel   ww. 1. Lyk asof dit vonke afgee; vonkel. Die water sprankel in die helder sonlig. 2. Baie mooi / gelukkig / vrolik lyk. Jy moet sien hoe sprankel sy as haar gunstelingonderwerp ter sprake kom. 3. Sprankelende vernuf / lewenskrag. Baie goed / uitstekend. ‘n Sprankelende vertoning lewer

Property: Are Verbal Agreements Valid?  
As movie mogul Samuel Goldwyn is said to have put it “A verbal contract isn't worth the paper it's written on”. The problem with oral agreements is that they are open to misinterpretation, doubt, dispute and outright fraudulent denial. Rather record and sign everything even when (as is the case with most contracts in South Africa) verbal contracts are every bit as binding as written ones.

Sometimes however verbal contracts aren’t just a bad idea, they aren’t valid at all – for example an oral contract for the sale, exchange or donation of land, or of any “interest in land”, is invalid. We address the danger of overlooking that requirement in the context of a recent High Court dispute over a “right of way” agreement.
Read More
Website of the Month: Video Guides to Starting Your Own Business
Many of us dream of starting up our own thriving businesses. But it’s an ambition that few actually attempt, let alone achieve, and no wonder – it’s scary going out on your own, and there are many challenges awaiting you on the road to success.

So where to start? The Internet has a wealth of useful resources for entrepreneurs (and would-be entrepreneurs). The general principles of entrepreneurship apply universally, so we take you to an American website offering an extensive library of easily-digestible video content – everything from “5 myths about starting your own business” to “Finding new business ideas in the everyday”…
Read More
 Our Directors
    Hennie van Zyl
021 180 4551 / 083 250 9501
      Eberhard Kruger
021 180 4552 / 082 789 1706
      Cheryl-Anne Ehrenreich
021 180 4564 / 082 783 7242
     Full Bio →

       Full Bio →

       Full Bio →


© LawDotNews & Van Zyl Kruger Inc. This newsletter is a general information sheet and should not be used or relied on as legal advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

VAN ZYL KRUGER INCORPORATED (REG. NO 2015/174073/21) (VAT NUMBER 413 0273 172)

Suite A4-2, Avanti Building, South Block,
cnr Carl Cronje Drive & Bill Bezuidenhout Avenue, Bellville, Cape Town | Reception: 021 180 4550 | Fax: 021 180 4540