1. Summary of facts and findings of the Supreme Court of Zimbabwe
Mapingure approached the High Court citing the Minister of Home Affairs, the Minister of Health and Child Welfare and the Minister of Justice, Legal and Parliamentary Affairs as respondents.
Her claim was for damages in the sum of US$10 000 for physical and mental pain as well as US$41 904 as costs of maintaining the child conceived following a rape.
The case was argued from the High Court all the way to the Supreme Court. The Supreme Court delivered judgement in March 2014 and found that the state was liable for the acts of its officers who failed to provide Mapingure with emergency contraception immediately following the rape and this in turn meant that there was failure to prevent the pregnancy.
However, the Supreme Court dismissed the second claim. It found that the state was not liable for the failure to ensure a timeous termination of pregnancy. The Court found that the state was not liable to provide maintenance for the child.
2. Key issues for determination
The Court noted two important enquiries to be made:
1. Whether or not there was negligence on the part of officials involved in the manner which they dealt with Mapingure’s predicament?
2. If there was negligence, whether Mapingure suffered actionable harm as a result and thus whether the state was liable in damages for pain and suffering and maintenance of the child?
3. Court found that there was negligence on the part of the doctor and the police for failure to ensure that the pregnancy was prevented.
The Court found that the doctor failed in his duty to ensure that pregnancy was prevented. The Court was of the opinion that “a reasonable person in the position of the doctor would have foreseen that failure to administer the contraceptive drug or failure to advise the appellant on the alternative means of accessing that drug, would probably result in her falling pregnant. Being in that position, he should have taken reasonable steps to guard against that probability.”
The Court also found that the police had failed in their duty to assist Mapingure so that she could promptly receive the requisite medical attention. The Court noted that, “…the police failed to compile the requisite report or to accompany the appellant to the doctor despite several spirited efforts by her to obtain their assistance.” The Court was of the opinion that the circumstances created by the facts were such as to create a legal duty -outside of their statutory function – on the part of the police to assist Mapingure in her efforts to prevent her pregnancy.
4. The Court found that Mapingure did in fact suffer actionable harm which could entitle her to damages
The Court noted that although the originating cause of Mapingure’s pregnancy was the rape, “its proximate cause was the negligent failure to administer the necessary preventive medication timeously”.
The Court pronounced that there was no doubt that Mapingure suffered harm (including mental anguish) as a result of the failure to prevent her pregnancy. The court found that this harm was foreseeable and accordingly made a claim for damages factually and legally sustainable. The Court thus found that that the Ministry of Home Affairs and the Ministry of Health and Child Welfare were liable to pay for damages for the negligence of the police and the doctor respectively.
5. The Court conceded that the law on termination lacks clarity
Importantly, the Court conceded that Zimbabwe’s Termination of Pregnancy Act is “ineptly framed and lacks sufficient clarity as to what exactly a victim of rape or other unlawful sexual intercourse is required to do when confronted with an unwanted pregnancy.”
6. The Court recognised the relevance of regional and international human rights norms and standards
The Court made key pronouncements as to the importance of international standards that protect a woman’s right to protect and control her biological integrity. The court clarified that these regional and international instruments cannot operate to override or modify domestic law. However, it was noted that it is proper and instructive to have regard to them as embodying norms of great persuasive value in the interpretation and application of domestic statutes and common law.
With respect to the rights of women and the special protection to women survivors of sexual and gender based violence, the Court noted the obligations arising from the Convention on the Elimination of all forms of Discrimination Against Women and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa.
7. The Courts failure to find negligence in respect of the termination of pregnancy.
The Court did not find the failure by the police to ensure that Mapingure got a certificate of termination, in a timely manner, consequential. The Court also did not take issue with the advice given to Mapingure i.e that she could not obtain a certificate before the rape trial was concluded). This contributed to her failure to get a certificate of termination in a timely manner.
The Court found instead that the obligations of the authorities cannot be extended to include a duty to initiate proceedings to obtain a certificate of termination on behalf of the victim but rather that it falls on the victim to take steps to obtain the certificate. This finding leaves a bitter taste, particularly bearing in mind the Court’s own comments regarding the vagueness of the statute in question and the fact that the case related to a victim of crime who was legally unrepresented. It is not clear why the same reasoning the Court used to make an extra statutory duty on the part of police in the case of prevention of pregnancy does not apply for the termination in the case of the Magistrate and the Prosecutor.
The Court found that the only damages Mapingure was entitled to were for the failure to prevent pregnancy and the resulting pain.
The Court thus ruled that the State cannot be held liable for damages arising from failure to terminate pregnancy and therefore was not liable for the pain and suffering caused by having to carry a pregnancy to full term and hence dismissed Mapingure’s claim for damages for the maintenance of her minor child.