PATEL JA:
This
is an appeal against the decision of the High Court in Case No. HC 4551/07,
handed down on 12 December 2012, dismissing an application for default judgment
against the respondents. The latter, having failed to file their plea,
were barred in the proceedings before the court a quo. The
appellant's claim, as amended, was for damages in the sum of US$10,000 for
physical and mental pain and US$41,904 for maintenance in respect of her minor
child. Her claim as against all three respondents was dismissed with no
order as to costs.
THE FACTS
Most of the facts in casu are common cause. On 4 April 2006, the
appellant was attacked and raped by robbers at her home in Chegutu. She
immediately lodged a report with the police in Chegutu and requested that she
be taken to a doctor to be given medication to prevent pregnancy and any
sexually transmitted infection. Later that day, she was taken to hospital
and attended to by a Dr. Kazembe. She repeated her request, but the
doctor only treated her injured knee. He said that he could only attend
to her request for preventive medication in the presence of a police officer.
He further indicated that the medication had to be administered within 72
hours of the sexual intercourse having occurred. She duly went to the
police station the following day and was advised that the officer who dealt
with her case was not available. She then returned to the hospital, but
the doctor insisted that he could only treat her if a police report was made
available. On 7 April 2006, she attended the hospital with another police
officer. At that stage, the doctor informed her that he could not treat
her as the prescribed seventy – two (72) hours had already elapsed.
Eventually, on 5 May 2006, the appellant's pregnancy was formally
confirmed.
Thereafter, the appellant went to see the
investigating police officer who referred her to a public prosecutor. She
indicated that she wanted her pregnancy terminated, but was told that she had
to wait until the rape trial had been completed. In July 2006, acting on
the direction of the police, she returned to the prosecution office and was
advised that she required a pregnancy termination order. The prosecutor
in question then consulted a magistrate who stated that he could not assist
because the rape trial had not been completed. She finally obtained the
necessary magisterial certificate on 30 September 2006. By that stage,
the hospital matron who was assigned to carry out the termination felt that it
was no longer safe to carry out the procedure and declined to do so.
Eventually, after the full term of her pregnancy, the appellant gave birth to
her child on 24 December 2006.
GROUNDS OF APPEAL
As I have already indicated, the learned judge a quo dismissed the appellant's
claim in its entirety. He found that the appellant's misfortune was
the result of her own ignorance as to the correct procedure to follow. In
particular, it was incumbent on her to initiate the process for the termination
of her pregnancy by way of affidavit or oath before a magistrate.
He further held that it was not the mandate of the officials
involved to advise the appellant on questions of procedure. Consequently,
the respondents were not directly or vicariously liable to the appellant.
The appellant's grounds of
appeal against this decision are fairly extensive. The court a quo
is stated to have erred in the following respects:
(i) applying the provisions
of the Termination of Pregnancy Act in relation to the failure to prevent her
pregnancy immediately after she was raped;
(ii) holding that the negligence
of the police in relation to the prevention and termination of the appellant's
pregnancy was not material;
(iii) finding that the duties of
the officials in question did not include the giving of proper guidance on the
procedure to be followed;
(iv) finding that the appellant
had not complied with the relevant provisions of the Act;
(v) not finding that the
“authorities” referred to in the Act meant the employees of the respondents;
(vi) not holding that the police
and prosecutors were enjoined by the Act to submit the requisite documents to
the magistrate; and
(vii) holding that the liability
of the respondents did not extend to extra-statutory duties founded on the
public's expectation of their official standing.
In essence, the
issues arising for determination from these wide-ranging grounds of appeal are
twofold. The first is whether or not the respondents' employees were
negligent in the manner in which they dealt with the appellant's
predicament. The second, assuming an affirmative answer to the first, is
whether the appellant suffered any actionable harm as a result of such
negligence and, if so, whether the respondents are liable to the appellant in
damages for pain and suffering and for the maintenance of her child.
MEDICAL NEGLIGENCE
The principles of Aquilian
liability for medical negligence were extensively canvassed by the South
African Appellate Division and Supreme Court of Appeal in Administrator
Natal v Edouard 1990 (3) SA 581 (AD) and Mukheiber v Raath
& Anor 1999 (3) SA 1065 (SCA). Both cases arose in the specific
context of unwanted pregnancies.
In Edouard's case, the
respondent sued the appellant for damages in a Local Division, for breach of a
contract concluded between the respondent's wife and a provincial hospital,
arising from its failure to perform a tubal ligation to render her sterile
during the course of a caesarean section. After his wife gave birth to
another child a year later, the respondent claimed contractual damages for the
cost of supporting and maintaining the child and general damages for the
discomfort, pain and suffering and loss of amenities of life suffered by his
wife. The court a quo upheld the claim for maintenance and
support of the child but held that a breach of contract did not give rise to a
claim for non-patrimonial damages. On appeal, it was contended for the
appellant that to allow the pregnancy claim would be to transfer the legal obligation
of supporting a child from the parents to a doctor or hospital and this ran
counter to public policy which demanded that there be no interference with the
sanctity accorded by law to the relationship between parent and child.
This contention was rejected by VAN HEERDEN JA, at 592H-593E,
on the basis that:
“The judgment in favour of the
respondent ……… in no way relieved the respondent [or his wife] from the
obligation to support [the child]. At most it enabled the respondent to fulfil
that obligation. There can thus be no question that the obligation has in law
been transferred from the respondent to the appellant ……….
In the result, I am of the view
that the respondent's pregnancy claim was rightly allowed by the Court a
quo. I should make it clear, however, that my conclusion is intended to
pertain only to a case where, as here, a sterilisation procedure was performed
for socio-economic reasons. … different considerations may apply where
sterilisation was sought for some other reason.”
As regards the claim for pain and suffering, it was held that only patrimonial
loss could be recovered in contract. There was no sufficient reason of
policy or convenience for importing into the law an extension of liability for
breach of contract so that intangible loss may be recovered ex contractu,
as this would lead to incongruous
results.
In the Mukheiber case, the claim against the
doctor was not contractual but delictual. The respondents, husband and
wife, relying on a misrepresentation by the appellant, a gynaecologist, that he
had sterilised the wife, had desisted from contraception. Consequently, a
child was conceived and born. The respondents claimed compensation from
the appellant under two heads of pure economic loss, for the costs of
confinement of the wife and for the maintenance of the child until it became
self-supporting. As regards the existence of a legal duty of care, it was
held by OLIVIER JA, at 1076F:
“The relationship between Mrs.
Raath (and her husband) and Dr. Mukheiber and the nature of his duties towards
them amounted, in my view, to a special duty on his part to be careful and
accurate in everything that he did and said pertaining to such
relationship.”
The test for professional
negligence was expounded by the learned Judge of Appeal, at 1077D-I, as
follows:
“For the purposes of liability culpa arises if–
(a) a reasonable
person in the position of the defendant-
(i) would have
foreseen harm of the general kind that actually occurred;
(ii) would have foreseen
the general kind of causal consequence by which that harm occurred;
(iii) would have taken
steps to guard against it; and
(b) the defendant
failed to take those steps.
In the case of an expert, such as
a surgeon, the standard is higher than that of the ordinary lay person and the
Court must consider the general level of skill and diligence possessed and
exercised at the time by the members of the branch of the profession to which
the practitioner belongs (Van Wyk v Lewis 1924 AD 438 at
444). Dr. Mukheiber did not dispute that, if it was found that he had
made the representation under discussion, his action was negligent. Applying
the tests set out above, it is clear that Dr. Mukheiber should reasonably have
foreseen the possibility of his representation causing damage to the Raaths and
should have taken reasonable steps to guard against such occurrence, and that
he failed to take such steps.”
As regards the extent of the expert's liability vis-à-vis considerations of public
policy, it was held, at 1081H- 1082B:
“As far as the confinement cost is
concerned, there can be no defence: such costs were reasonably foreseeable and
there is no reason to limit them. The problem arises in connection with the
maintenance claim. The cost of maintaining the child Jonathan is a direct
consequence of the misrepresentation. It was foreseeable by a gynaecologist in
Dr. Mukheiber's position. In principle he is, by virtue of considerations of
public policy, not protected against such a claim, as pointed out above. But
the claim cannot be unlimited. His liability can be no greater than that which
rests on the parents to maintain the child according to their means and station
in life, and lapses when the child is reasonably able to support itself.
In the result, I am of the view
that considerations of public policy do not militate against holding Dr.
Mukhaiber liable for compensating the Raaths for the damages claimed by
them.”
LIABILITY OF THE POLICE
With respect to the liability of
the police, in the context of their prescribed functions and duties, the South
African case of Minister of Police v Ewels 1975 (3) SA 590
(AD) is particularly instructive. The respondent in that case, an
ordinary citizen, had been assaulted by an off-duty police sergeant in a police
station. In an action for damages, the appellant had excepted to the
respondent's claim on the ground that the Police Act No. 7 of 1958 placed no
legal duty on the policemen to protect the appellant, nor created any civil
liability, and that the conduct of the policemen was not such as to have
created a legal duty to protect the respondent. The court a quo
dismissed the exception and its decision was upheld on appeal to the Appellate
Division.
As regards the statutory
functions of the police, Rumpff CJ took the view, at 596, that:
“If the purpose of the Legislator,
as reflected in this Act, is taken into account, it cannot in my opinion be
said that the non-compliance by a policeman of the provisions of sec. 5
necessarily creates a civil liability. ………… Despite this, the statutory duty
which appears from sec. 5 is a factor which ought to be taken into account in
the factual circumstances of this case ………”
In the context of liability for omissions in general, the learned Chief Justice
expounded the governing principles, at 596-597, as follows:
“It would appear that the question
of an omission, as delictual unlawful conduct, has reached a measure of
clarity, cf. ………. The premise is accepted that there is no general legal duty
on a person to prevent harm to another, even if such person could easily
prevent such harm, and even if one could expect, on purely moral grounds, that
such person act positively to prevent damage. It is also however accepted that
in certain circumstances there is a legal duty on a person to prevent harm to
another. If he fails to comply with that duty, there is an unlawful omission
which can give rise to a claim for damages. ………… It appears that the stage has
been reached where an omission is regarded as unlawful conduct when the
circumstances of the case are such that the omission not only occasions moral
indignation but where the legal convictions of the community require that the
omission be regarded as unlawful and that the loss suffered be compensated by
the person who failed to act positively. When determining unlawfulness, one is
not concerned, in any given case of an omission, with the customary
'negligence' of the bonus paterfamilias, but with the question
whether, all facts considered, there was a legal duty to act reasonably.
…………
Just as a duty to rescue can
sometimes be a legal duty, so a duty to protect may be a legal duty, and it
would depend on all the facts whether such duty is a legal duty or not. Clearly
it is impossible to determine in general when such a legal duty would
arise.”
With specific reference to the
preventive functions of the police, it was held at 597:
“As regards crime, the policeman
is not only a deterrent and a detective but also a protector. Plaintiff was
assaulted in a police station under the control of the police and in the sight
of a number of policemen, for whom it was possible, even easy, jointly, to
prevent or stop the attack on plaintiff. ………
When all the circumstances are
considered, I think that the duty of the policemen to assist the plaintiff was
a legal duty, and that, because it was an omission which took place in the
course of duty of the policemen, defendant is liable.”
In upholding the decision of the lower court dismissing the exception, it was
observed, at 597-598:
“According to the pleadings the
policemen were negligent, and in the context of the cause of action this must
be understood as an allegation that they ought to have foreseen that their
inaction would cause damage to plaintiff and that they failed, by reasonable
action, to prevent the damage. The cause of action therefore contains the
allegations of an unlawful omission and fault, and the exception was correctly
dismissed.”
In Minister of Police v Skosana 1977 (1) SA 31 (A) the
Appellate Division grappled with the question of causation in a situation where
a drunken driver, who had been injured in a motor accident, died whilst under
police custody due to the failure to timeously procure medical attention for
him. The deceased would probably have survived had he been taken for
treatment timeously. It was held, by a 3-2 majority, that the police had failed
in their duty towards the deceased and were liable to his widow and minor
children for damages resulting from his death. Corbett JA, delivering the
majority judgment, set out the governing principles, at 34E-35D:
“Causation in the law of delict
gives rise to two rather distinct problems. The first is a factual one and
relates to the question as to whether the negligent act or omission in question
caused or materially contributed to …….. the harm giving rise to the
claim. If it did not, then no legal liability can arise and cadit quaestio.
If it did, then the second problem becomes relevant, viz. whether the negligent
act or omission is linked to the harm sufficiently closely or directly for
legal liability to ensue, or whether, as it is said, the harm is too remote.
This is basically a juridical problem in which considerations of legal policy
may play a part. ……..
The test is thus whether but for
the negligent act or omission of the defendant the event giving rise to the
harm in question would have occurred. The test is otherwise known as that of
the causa (conditio) sine qua non and I agree with my Brother Viljoen
that generally speaking …….. no act, condition or omission can be regarded as a
cause in fact unless it passes this test.”
Applying this test, the majority concluded that the respondent had established
negligent delay in furnishing the deceased with medical aid and treatment and
that, as a matter of probability, the deceased would have survived but for the
negligence of the police.
In Minister of Law and Order
v Kadir 1995 (1) SA 303 (A) the Appellate Division adopted a more restrictive
approach to the claim before it. The police attending to a traffic
accident failed to record the particulars of the driver who caused the
accident. The result of this failure was that the person who had been injured
in the accident was unable to locate the driver and sue him. It was held
that the police did not owe the injured party a legal duty to record
information relating to the identity of the driver or his vehicle and,
therefore, the injured party was not entitled to sue the police. Hefer JA,
at 321H-322B, distinguished the facts of Ewels' case as being vastly
different and reasoned as follows:
“Viewing the matter objectively
society will take account of the fact that the functions of the police relate
in terms of the Act to criminal matters and were not designed for the purpose
of assisting civil litigants. Members of the community will realise that
services are rendered by the police in connection with road accidents in the
course of what was described in Dease v Minister of Justice
1962 (3) SA 215 (T) at 218B-C as “exceptional duties falling outside the
meaning of the term 'police duties' as ordinarily understood,” and that these
duties, largely self-imposed, may well be terminated or curtailed if the Courts
penalise less than perfect performance. Bearing this in mind society will baulk
at the idea of holding policemen personally liable for damages arising from
what was a relatively insignificant dereliction of duty.
In my view the facts alleged in
the particulars of claim do not prima facie support the existence of a
legal duty towards the plaintiff. The exception should have been
allowed.”
In Van Eeden v Minister
of Safety and Security 2003 (1) SA 389 (SCA) the Supreme Court of Appeal
evaluated the concept of the legal convictions of the community in light of the
constitutional imperatives of the State as embodied in the Bill of Rights
The State was held liable for a rape committed by a known dangerous
criminal and serial rapist who had escaped through an unlocked gate from police
cells where he was being held for an identification parade. Vivier ADP
enunciated the common law position, at paras. 9-12:
“Our common law employs the
element of wrongfulness (in addition to the requirements of fault, causation
and harm) to determine liability for delictual damages caused by an omission.
The appropriate test for determining wrongfulness has been settled in a long
line of decisions of this Court. An omission is wrongful if the defendant is
under a legal duty to act positively to prevent the harm suffered by the
plaintiff. The test is one of reasonableness. A defendant is under a legal duty
to act positively to prevent harm to the plaintiff if it is reasonable to
expect of the defendant to have taken positive measures to prevent the harm.
The court determines whether it is reasonable to have expected of the defendant
to have done so by making a value judgment, based inter alia upon its
perception of the legal convictions of the community and on considerations of
public policy. The question whether a legal duty exists in a particular case is
thus a conclusion of law depending on a consideration of all the circumstances
of the case and on the interplay of the many factors which have to be
considered. ……..
In applying the concept of the
legal convictions of the community the court is not concerned with what the
community regards as socially, morally, ethically or religiously right or
wrong, but whether or not the community regards a particular act or form of
conduct as delictually wrongful. The legal convictions of the community must
further be seen as the legal convictions of the legal policy makers of the
community, such as the legislature and judges. ........
The approach of our courts to the
question whether a particular omission to act should be regarded as unlawful
has always been an open-ended and flexible one. ……..
The concept of the legal
convictions of the community must now necessarily incorporate the norms, values
and principles contained in the Constitution. The Constitution is the supreme
law of this country, and no law, conduct, norms or values that are inconsistent
with it can have legal validity, which has the effect of making the
Constitution a system of objective, normative values for legal purposes. ……..
The Constitution cannot, however, be regarded as the exclusive embodiment of
the delictual criterion of the legal convictions of the community, nor does it
mean that this criterion will lose its status as an agent in shaping and
improving the law of delict to deal with new challenges.”
Having regard to the constitutional right to freedom and security of the
person, as including the right to be free from all forms of violence from
either public or private sources, it was held, at para. 24:
“In all the circumstances of the
present case I have come to the conclusion that the police owed the appellant a
duty to act positively to prevent Mohamed's escape. The existence of such a
duty accords with what I would perceive to be the legal convictions of the
community and there are no considerations of public policy militating against
the imposition of such a duty. To sum up, I have reached this conclusion mainly
in view of the State's constitutional imperatives to which I have referred, the
fact that the police had control over Mohamed who was known to be a dangerous
criminal and who was likely to commit further sexual offences against women
should he escape, and the fact that measures to prevent his escape could
reasonably and practically have been required and taken by the police.”
In Zimbabwe, in the leading case of King v Dykes 1971 (2) RLR
151 (AD), the factual situation involved the failure of a farmer to take
reasonable steps to fight and prevent the spread of a fire which had spread
onto his land from an adjoining farm. Our Appellate Division reserved to
itself the power to create additional legal duties to act positively in cases
falling outside the scope of the recognised categories of negligence. As was
explained by Macdonald ACJ, at 154C-D:
“In border line cases the real
problem with which a court is faced in the final analysis is to whether an
undoubted moral duty existing in the particular circumstances should be
translated into a legal duty. It is the intractability of this problem, arising
more particularly in cases involving omission, which encourages courts to seek
refuge in rules of thumb. Such a refuge, however, is illusory and in the end
causes a great deal more mischief to the law than good.”
The preferable approach to be taken was articulated by the learned Acting Chief
Justice, at 157D-F, as follows:
“Whether a moral duty exists will
not, in the majority of cases, be difficult to decide. The problem, as
indicated above, is always to decide whether the moral duty should be
translated into a legal duty. The resolution of this problem is not an exact
science, on the contrary, the court, after assessing all the relevant factors,
must of necessity come to what is essentially a value judgment in order to do
justice between the parties. It is beyond the wit of man to devise sets of
rules for different situations, the application of which will provide a
satisfactory answer with mathematical certainty.”
Commenting on this decision in comparison with the Ewels and Kadir
cases, supra, Prof. G. Feltoe in A Guide to the Zimbabwean Law of
Delict (2012) at p. 45 opines that:
“There appears to be little
difference between the test applied in South Africa and that applied in
Zimbabwe to decide whether a new legal duty should be recognised because the
final decision will obviously revolve around policy considerations such as
social utility, practicality of enforcing a new duty, and the likely impact
upon the [defendant's] activities of such a duty”.
In summation, the underlying rationale of all of the
decided cases vis-à-vis the role of the police is that their duty to act cannot
be confined to their statutorily prescribed functions. In the specific
circumstances of any given case, it may be legally incumbent upon them to act
outside and beyond their ordinary mandate, so as to aid and assist citizens in
need, in matters unrelated to the detection or prevention of crime.
Consequently, where such a legal duty is found to exist, and harm that is
foreseeable eventuates from the failure to prevent it, the victim of that harm
may be entitled to pursue and obtain appropriate compensation through a claim
for damages, having regard in every case to considerations of public
policy.
THE INTERNATIONAL DIMENSION
A further aspect that arises for consideration in the
present context is the normative role of international instruments that
specifically address the rights of women. In strict constitutional terms, the
prescriptions of such instruments cannot operate to override or modify domestic
law unless and until they are internalised and transformed into rules of
domestic law. (This principle of the common law was expressly codified in
s 111B (1) (b) of the former Constitution and is now reaffirmed in s 327
(2) (b) of the new Constitution). Nevertheless, it is proper and
necessary for national courts, as part of the judicial process, to have regard
to the country's international obligations, whether or not they have been
incorporated into domestic law. By the same token, it is perfectly proper
in the construction of municipal statutes to take into account the prevailing
international human rights jurisprudence. As was observed by Dumbutshena
CJ in State v A Juvenile 1990 (4) SA 151 (ZSC) at 155G-I:
“An added advantage is that the
Courts of this country are free to import into the interpretation of s 15(1)
interpretations of similar provisions in International and Regional Human
Rights Instruments such as, among others, the International Bill of Human
Rights, the European Convention for the Protection of Human Rights and
Fundamental Freedoms, and the Inter-American Convention on Human Rights. In the
end international human rights norms will become part of our domestic human
rights law. In this way our domestic human rights jurisdiction is enriched.”
This approach was positively
endorsed and adopted by Gubbay CJ in Rattigan & Ors v Chief
Immigration Officer & Ors 1995 (2) SA 182 (ZSC) at 189G-190I.
The learned Chief Justice, eschewing “the austerity of tabulated legalism”,
made extensive reference to decisions of the United Nations Human Rights
Committee and the European Court of Human Rights in the process of purposively
interpreting and applying provisions embodied in our Declaration of
Rights.
For present purposes, there are several internationally
recognised norms that have a direct bearing on the issues at hand.
Firstly, there is the Convention on the Elimination of All Forms of
Discrimination against Women 1979, which was ratified by Zimbabwe on 13 May
1991. Article 16 of the Convention requires States Parties to eliminate
discrimination against women in all matters relating to marriage and family
relations. In particular, para. (e) of Article 16.1 guarantees “the same
rights to decide freely and responsibly on the number and spacing of their
children and to have access to the information, education and means to enable
them to exercise these rights”.
Again, Article 4 of the United
Nations Declaration on the Elimination of Violence against Women 1993, calls
upon States to pursue a policy of eliminating violence against women. To
this end, women who are subjected to violence “should be provided with access
to the mechanisms of justice and ………… just and effective remedies for the harm
that they have suffered” as well as information on “their rights in seeking
redress through such mechanisms” (para. (d)). Furthermore, States should ensure
that female victims of violence “have specialised assistance, such as
rehabilitation, assistance in child care and maintenance, treatment,
counselling, and health and social services” (para. (g)).
Also relevant are various
provisions of the Protocol to the African Charter on Human and Peoples Rights
on the Rights of Women in Africa 2003. Article 4 of the Protocol enjoins States
Parties to take appropriate and effective measures to “establish mechanisms and
accessible services for effective information, rehabilitation and reparation
for victims of violence against women” (para. (f)). Of special relevance is
Article 14 pertaining to health and reproductive rights. Article 14.1
obligates States Parties to respect and promote the rights of women “to control
their fertility ………… to decide whether to have children, the number of children
and the spacing of children [and] ………… to choose any method of contraception”.
Equally significantly, in terms of Article 14.2(c), States Parties must take
all appropriate measures to “protect the reproductive rights of women by
authorising medical abortion in cases of sexual assault, rape, incest
…………”.
I note that many of the above-mentioned
requirements are already recognised in the laws and administrative practices of
Zimbabwe, though they may not have been specifically domesticated. In any
event, as I have intimated earlier, it is both proper and instructive to have
regard to them as embodying norms of great persuasive value in the
interpretation and application of our statutes and the common law.
NEGLIGENCE IN RESPECT OF PREVENTION OF PREGNANCY
In terms of the appellant's declaration, the negligence of the respondents'
employees in relation to their failure to prevent the appellant's pregnancy is
stated as follows. Firstly, the police failed to attend timeously in
taking the appellant to the doctor for her pregnancy to be prevented.
Secondly, the doctor himself failed to terminate the pregnancy when it could
have been reasonably prevented. The magistrate and prosecutors are not
implicated in this aspect of the appellant's
claim.
As a general rule, the mandate of the police is to prevent
the commission of crimes and to bring to book the perpetrators of crime.
Their functions in cases involving rape do not ordinarily extend to the
prevention of potential pregnancy or the provision of assistance in that
process. Indeed, the declaration does not aver the existence of any
specific common law or statutory duty in that regard. This is an aspect
that is only raised in the appellant's heads of argument. Be that as it
may, I do not think that this omission is fatal to the appellant's cause of
action. In my view, the averments of negligence as framed in the declaration
suffice to import, by necessary implication, the requisite averment of breach
of duty (cf. the approach taken in Ewels' case, supra,
at 597 -598).
Notwithstanding what might be accepted as the ordinary
functions of the police, the inaction of the police in this case cannot be
treated in isolation. It must be seen in conjunction with the conduct of
the doctor who treated the appellant after she was raped. It is common cause
that the doctor declined to administer the preventive medication requested by
the appellant without a police report. Subsequently, after the appellant
made numerous trips to the police station, a police officer eventually
accompanied her to the hospital. At that stage, the doctor again refused
to administer the drug because (seventy-two) 72 hours had already elapsed since
the occurrence of the sexual intercourse. In all of these respects, there
is nothing in the record to show why the doctor insisted on a police report or
why he regarded the period of (seventy-two) 72 hours as being critical.
It may well be that the established hospital procedure or practice necessitated
that insistence. However, there is no plea filed of record or any other
evidence to explain or support the position adopted by the doctor.
Another aspect that is absent from the record, but which
was alluded to by counsel for the respondents at the hearing of the appeal, is
the availability of the preventive drug off the counter upon request from any
licensed chemist. (I understand that this drug is pharmaceutically identified
as “livonorgesterol” and sold under the trade names Pregnon and Prostino).
Again, it is not at all clear whether this was a viable option without a
medical prescription and, if it was, why the doctor did not advise the
appellant to proceed accordingly. Consequently, in the absence of any evidence
to the contrary in the record, we find that the only recourse available to the
appellant, at the relevant time and in the prevailing circumstances, was the
medication that could and should have been administered by the doctor
himself.
It cannot be disputed that there was a professional
relationship between the appellant and the doctor. The nature of his
duties required that he attend to all the physical injuries arising from the
sexual assault inflicted upon her. Consequently, as was postulated in Mukheiber's
case, supra, the doctor was under a special duty to be careful and
accurate in everything that he did and said pertaining to his relationship with
the appellant. It behoved him to exercise that level of skill and
diligence possessed and exercised at the time by the members of his profession.
In my view, a reasonable person in the position of the doctor would have
foreseen that his failure to administer the contraceptive drug, or his 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.
However, despite the appellant's quandary and persistent pleas for
treatment, he stubbornly failed to take any steps to mitigate her
condition.
On their part, 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 evidence before the court a
quo indicates that the police were very alive to the appellant's
predicament but neglected to comply with her entreaties for various
administrative reasons that are not entirely clear. The situation before
them was that of a victim of sexual violence requiring their urgent
assistance. They were called upon either to compile a report on the
assault or to accompany the appellant to the doctor within a specified
period. Having regard to the principles articulated in the Ewels
and Van Eeden cases, supra, it seems to me that the
circumstances in casu were such as to create a legal duty on the part
of the police to assist the appellant in her efforts to prevent her
pregnancy. They failed to comply with that duty, which they could have
done with relative ease, and there is no clear evidence to indicate why they
did not. In my view, their inaction amounted to unlawful conduct by
reason of their omission to act positively in the circumstances before
them. They were under a legal duty to act reasonably and they dismally
failed to do so.
Insofar as concerns the requisite causal nexus, the factual circumstances of
the present case are not dissimilar to those in Skosana's case, supra.
In that case, the deceased, who had been injured in an earlier motor accident,
would probably have survived but for the negligent delay of the police in
procuring medical attention for him. In casu, although the originating
cause of the appellant's pregnancy was the rape inflicted upon her, its
proximate cause was the negligent failure to administer the necessary
preventive medication timeously. But for that failure, the appellant
would not have fallen pregnant.
In summation, I am satisfied that the police failed in
their duty to assist the appellant timeously in having her pregnancy prevented
by the doctor. Again, the doctor himself failed to carry out his
professional duty to avert the pregnancy when it could have been reasonably
prevented. There can be no doubt that these unlawful omissions took place
within the course and scope of their employment with the first and second
respondents respectively. Accordingly, the first and second respondents
must be held vicariously liable to compensate the appellant in respect of the
harm occasioned through the failure to prevent her pregnancy.
NEGLIGENCE IN RESPECT OF TERMINATION OF
PREGNANCY
The negligence of the respondents' employees in relation to the non-termination
of the appellant's pregnancy is pleaded as follows. Firstly, the police
failed to attend at the hospital within a reasonable time or to take reasonable
steps to ensure that the pregnancy was terminated. Secondly, the matron
failed to take reasonable steps to terminate the pregnancy. Lastly, the
prosecutors and the magistrate failed to attend timeously to or to take
reasonable steps necessary for the issuance of a certificate for the pregnancy
to be terminated.
The provisions governing the lawful termination of pregnancies are contained in
the Termination of Pregnancy Act [Cap15:10]. According to its long
title, it was enacted in 1978 as:
“An act to change the law relating
to abortion by defining the circumstances in which a pregnancy may be
terminated and to provide for matters incidental to or connected with the
foregoing.”
In terms of the definition of “Minister” and “Secretary” in s 2 (1) of the Act,
as read with Statutory Instrument 66 of 2010, the administration of the Act is
assigned to the Minister of Health and Child Welfare., i.e. the second
respondent. There is nothing specifically stated in the Act pertaining to
the administrative roles of the first and third respondents.
The circumstances in which pregnancy may be lawfully
terminated are enumerated in s 4 as follows:
“Subject to this Act, a pregnancy may be terminated—
(a) where the
continuation of the pregnancy so endangers the life of the woman concerned or
so constitutes a serious threat of permanent impairment of her physical health
that the termination of the pregnancy is necessary to ensure her life or
physical health, as the case may be; or
(b) where there is a
serious risk that the child to be born will suffer from a physical or
mental defect of such a nature that he will permanently be seriously
handicapped; or
(c) where there
is a reasonable possibility that the foetus is conceived as a result of
unlawful intercourse.”
The term “unlawful intercourse”
(as substituted by section 282 of Act No. 23 of 2004) is defined in s 2 (1) to
mean:
“rape, other than rape within a
marriage, and sexual intercourse within a prohibited degree of relationship,
other then sexual intercourse with a person referred to in para (i) or
(j) of subsection (1) of section 75 of the Criminal Code.”
Section 5 spells out the conditions under which pregnancy may be terminated. It
provides in its relevant portions that:
“(1) Subject to section seven,
a pregnancy may only be terminated by a medical practitioner in a designated
institution with the permission in writing of the superintendent thereof.
(2)…….. .
(3) In the case of the termination
of a pregnancy on the grounds referred to in paragraph (c) of section four,
the superintendent shall give the permission referred to in subsection (1) on
the production to him of the appropriate certificate in terms of subsection
(4).
(4) A pregnancy may only be
terminated on the grounds referred to in paragraph (c) of section four
by a medical practitioner after a certificate has been issued by a
magistrate of a court in the jurisdiction of which the pregnancy is terminated
to the effect that –
(a) he has satisfied
himself –
(i) that a complaint relating to
the alleged unlawful intercourse in question has been lodged with the
authorities; and
(ii) after an examination of any
relevant documents submitted to him by the authorities and after such
interrogation of the woman concerned or any other person as he may consider
necessary, that, on a balance of probabilities, unlawful intercourse with the
woman concerned has taken place and there is a reasonable possibility that the
pregnancy is the result of such intercourse; and
(iii) in the case of the alleged
incest, that the woman concerned is related within the prohibited degree to the
person with whom she is alleged to have had incest; and
(b) in the case of
alleged rape or incest, the woman concerned has alleged in an affidavit
submitted to the magistrate or in a statement made under oath to the magistrate
that the pregnancy could be the result of that rape or incest, as the case may
be.
(5) …….. .
(6) …….. .”
It is clear from these provisions that permission for the
termination of pregnancy pursuant to unlawful intercourse may only be granted
by the superintendent of a designated institution. The precondition for
that permission is the production of a certificate from a magistrate within the
same jurisdiction. As is evident from s 5 (4) (a) (i) and (ii), the
issuance of a magisterial certificate is preceded by a complaint having been
lodged with the authorities and the submission of relevant documents by those
authorities. The term “authorities” is not defined in the Act but, in the
context of unlawful intercourse, i.e. rape or incest, it would ordinarily
apply to mean the police authorities. For present purposes, the critical
question to be answered is whether the responsibility for instituting
proceedings in the Magistrates Court lies with the relevant authorities or the
victim of the alleged unlawful intercourse.
Mr. Mureriwa for the appellant submits that it is
the police who should have presented the relevant documents to the magistrate,
in terms of s 5 (4) (a), and that any further affidavit by the appellant under
s 5 (4) (b) was unnecessary. The latter provision, so he contends, is
confined to instances of intra-marital rape, where a simpler procedure is
prescribed. Therefore, the learned judge a quo misapplied s 5 of
the Act in finding that an affidavit from the appellant was a prerequisite for
the issuance of a magisterial certificate. In support of his argument,
Mr. Mureriwa relies on the case of Ex parte Miss X 1993 (1)
ZLR 233 (H).
As I read this case, it clearly
does not support any of Mr Mureriwa's contentions. On the contrary, as
is evident from its facts, at 235F-236G, it was Miss X herself who made
an application for a certificate in terms of s 5 (4) of the Act, pursuant to
which the Provincial Magistrate in question recorded her full sworn statement.
In any event, what can be usefully gleaned from the case is the standard
of proof required to secure a certificate. As was observed by CHIDYAUSIKU
J (as he then was) at 239F-G:
“In an application for termination
of pregnancy, the stringent requirements of proof before a complainant's evidence
can be accepted for the purpose of conviction do not apply. All that was
required of the magistrate in this case was to be satisfied that the
complainant probably did not consent to the alleged intercourse and that there
was a reasonable possibility that the pregnancy arose from that
intercourse.”
Turning to the question at hand, it is abundantly clear
that subparas. (a) and (b) of s 5 (4) are framed conjunctively and not
disjunctively. Accordingly, their provisions and requirements must be
construed as being conjunctive and cumulative rather than in the alternative.
What they envisage is a single application and not two distinct processes
applicable to different circumstances. The reference to “rape or incest”
in subpara (b), as opposed to “unlawful intercourse”, may well be a drafting
anomaly. However, it follows immediately after the reference in subpara.
(a) (iii) to “incest” only, and appears to have been inserted so as to make it
clear that the applicant's evidence by way of affidavit or under oath is
necessary in the case of both rape and incest.
What all of this means is that the victim of the alleged
rape must depose to an affidavit or make a statement under oath in addition
to being present for possible interrogation by the magistrate. Given the ex
parte nature of the procedure, an affidavit on its own may not always
suffice to enable the magistrate to make the necessary determination, on a
balance of probabilities, that the applicant was raped and that her pregnancy
resulted therefrom. However, the applicant's affidavit or statement under
oath is essential and required in every case, whether or not the magistrate
decides to examine the applicant or any other person as he may deem
necessary.
It follows from the foregoing that it is the responsibility
of the victim of the alleged rape to institute proceedings for the issuance of
a magisterial certificate allowing the termination of her pregnancy in terms of
s 5 (4). What then is the role of the other participants in the overall
process? The role of the police and the prosecutor, upon request by the
victim or in response to a directive by the magistrate, is to compile the
relevant report and documentation pertaining to the rape for submission to the
magistrate. The role of the magistrate is to issue the requisite certificate
upon being duly satisfied in terms of s 5 (4), while that of the superintendent
of the designated institution is to authorise its medical practitioner, upon
production of the certificate, to terminate the unwanted pregnancy. It
may also be necessary, where appropriate, for these functionaries to give
accurate information and advice, within the purview of their respective
functions, to enable the victim to terminate her pregnancy. But that, in
my view, is as far as one can take the responsibilities and duties of the
relevant authorities.
In taking this view, I have not
disregarded the various international instruments discussed earlier.
Amongst other things, they enjoin the relevant authorities to ensure that the
perpetrators of sexual violence are brought to book and that the victims are
given access to appropriate mechanisms of justice in enforcing their claims
against their assailants. They also call upon the authorities to assist
any such victim so as to enable her to effectively protect and control her
biological integrity. In legislative terms, this would involve the enactment of
an enabling legal framework for the termination of pregnancy in appropriate
circumstances. In practical terms, it would also entail availing the
necessary information and affording the requisite facilities, to the extent
that this is possible, in accordance with the prevailing material and financial
means of the State. However, I do not think that the obligations of the
authorities can be extended to any legal duty to initiate and institute court
proceedings within that framework on behalf of the victim.
Reverting to the appellant's
claim as pleaded, the police certainly cannot be held accountable for failing
to accompany her to the hospital or to take other reasonable steps to ensure
that her pregnancy was terminated. Their function in this regard was
confined to producing such report or other document as may have been required
to establish that the appellant had been raped. Again, it cannot possibly
be said that the matron at the hospital failed to take reasonable steps to
terminate the pregnancy. When presented with the magisterial certificate,
she took the professional view, the correctness of which is not disputed, that
it was no longer physically safe for the appellant's pregnancy to be
terminated. As for the prosecutors and the magistrate, it appears that
they may have given the appellant incorrect advice on the procedure to be
followed for terminating her pregnancy. However, there is insufficient
evidence on record to show what precisely transpired in the interaction between
the appellant and these functionaries.
In any event, it is necessary in
dealing with this aspect to consider the designated functions of a prosecutor
and magistrate in proceedings under s 5 (4) of the Act. The prosecutor
has no specific role to play other than to furnish such documents as the
magistrate may direct. The mandate of the magistrate is to consider and
determine any application for termination of pregnancy that is placed before
the court. In my view, the circumspect approach adopted in Kadir's
case, supra, commends itself for application in the present
context. Even on the broadest interpretation of the Act, taken as a
whole, I do not think that it is within the scope of prosecutorial or
magisterial functions to give legal advice on the procedural steps required to
terminate a pregnancy. To accept that position would be tantamount to
opening the floodgates to a veritable deluge of claims founded on the perceived
failure to act reasonably in relation to matters clearly beyond the bounds of
their official competence. Moreover, I am inclined to believe that the
convictions of the community and considerations of public policy would militate
unequivocally against the imputation of liability in the present context.
Accordingly, on the facts of this
case, I take the view that the duty of the prosecutors and magistrate to act
reasonably in the performance of their functions did not extend to the giving
of legal advice, whether accurate or otherwise, to the appellant. It was for
her to have sought that advice aliunde, preferably from a lawyer in
private or paralegal practice, as soon as possible after she became aware of
her pregnancy in May 2006. It follows that the prosecutors and magistrate
cannot be held liable for failing to take such reasonable steps as may have
been necessary for the issuance of the requisite certificate. It also
follows that it was the appellant's own failure to institute the necessary
application that resulted in the inability to have her pregnancy timeously
terminated. Consequently, her claim founded on the failure to terminate her
pregnancy must fail as against all three respondents.
Having arrived at this conclusion, I think it necessary to comment on the
formulation of the statutory provision under consideration. It is apparent from
the foregoing that s 5(4) of the Act is ineptly framed and lacks sufficient
clarity as to what exactly a victim of rape or other unlawful intercourse is
required to do when confronted with an unwanted pregnancy. The subsection
obviously needs to be amended. In particular, it is necessary to specifically
identify the “authorities” that are referred to in the provision and to delineate
their obligations with adequate precision. It is also necessary to
systematically spell out the procedural steps that the complainant herself must
follow in order to obtain the requisite magisterial certificate to terminate
her pregnancy. This is especially so in the present context, where it is more
likely than not that the complainant will be legally unrepresented.
The need to clarify the provision is abundantly
self-evident from the facts of the instant appeal and the circumstances of the
appellant. Moreover, it is a matter that calls for general attention by virtue
of the international obligations of the State that I have alluded to earlier, viz.
to afford assistance to rape victims to enable them to effectively protect and
control their biological integrity. From a practical perspective, there is also
the obligation to avail the necessary information to ensure the appropriate
level of public awareness of the legislative and procedural measures in place.
In my view, these are matters that should be brought to the
specific attention of the second respondent, as the Minister responsible for
the administration of the Act, and the third respondent, in his capacity as the
Minister charged with the passage of amending legislation through Parliament.
DAMAGES FOR PAIN AND SUFFERING AND MAINTENANCE
As I have already concluded, the police and the doctor were negligent in that
they failed in their duty of care towards the appellant in having her pregnancy
prevented. Consequently, the first and second respondents are vicariously
liable in damages for any actionable harm sustained by the appellant.
Having regard to the broad
principles of delictual liability, and in light of the decisions in the Edouard
and Mukheiber cases, supra, I do not perceive any conceptual
limitation to allowing a claim in general damages for foreseeable harm that
eventuates from an unwanted pregnancy. Although the present claim is
without precedent in this jurisdiction, its novelty does not involve any
impermissible extension of Aquilian liability. In short, an unwanted
pregnancy can, depending on the circumstances of its occurrence, constitute
actionable harm. Accordingly, the appellant is entitled to proven general
damages arising from the failure to prevent her pregnancy.
As regards the claim for
maintenance, such a claim is ordinarily predicated on a relationship between
the parties of such kind as to create a legal duty to support between them, viz.
husband and wife, parent and child, grandparent and grandchild, and immediate
collaterals. The liability of a third party outside any such familial
relationship is traditionally confined to one who deprives a dependant of
support by wrongfully causing the death or incapacitation of the person
supporting the claimant. See Boberg: The Law of Persons and the
Family (1977) at pp. 249-250 and 302-303. However, as was clearly
recognised in Mukheiber's case, supra, there can be no
objection in principle to a claim for delictual damages flowing from an
unwanted pregnancy. This would apply not only to the costs of confinement
and the physical pain of delivery but also to the expense of maintaining the
child until it becomes self-supporting.
In para. 2 of her affidavit of
evidence, dated 6 April 2010, the appellant sets out her claim for US$10,000 as
general damages arising from her pregnancy. She avers that she went
through physical and mental pain, anguish and stress. More particularly,
she had to endure a pregnancy, which was the result of rape, for nine months,
followed by the labour pains of delivery. She was stressed throughout
that period and is now stressed with the reality of having a child who is the
product of that rape. In para. 3 of the same affidavit, the appellant
elaborates her claim for US$41,904 as damages representing the reasonable costs
of maintaining her child until he attains the age of majority or becomes
self-supporting. The claim covers food and clothing as well as medical
and educational expenses.
The respondents' heads of
argument do not attempt to controvert the appellant's averments as to the
physical and mental anguish that she endured as a result of her unwanted
pregnancy. Nor do they suggest that this harm was not foreseeable.
Again, at the hearing of the appeal, Adv. Mpofu did not proffer any
submissions to counter the appellant's claim on the ground of unforeseeable
harm.
In the instant case, it cannot be
doubted that the appellant did suffer harm as a result of the failure to
prevent her pregnancy. Moreover, on the facts before us, there is nothing
to indicate that this harm was not reasonably foreseeable. It was
manifestly clear, to both the police and the doctor, that the appellant was
vehemently averse to falling pregnant. Consequently, they must have
foreseen that, if she were to fall pregnant, she would inevitably undergo the
mental anguish of an unwanted pregnancy. To this extent, the appellant's claim
is factually and legally sustainable as having resulted from the negligence of
the police and the doctor.
However, the chain of causation in this case cannot be
extended beyond the period of one month after the appellant was raped, i.e.
when her pregnancy was confirmed. As I have already concluded, the
responsibility for taking steps to terminate her pregnancy fell squarely upon
the appellant's shoulders and, by the same token, the capacity to do so also
lay within her hands. On that basis, the respondents cannot be called to
account for any subsequent pain and suffering endured by the appellant, whether
arising from her continued pregnancy or the delivery of her child or the period
thereafter. The same must obviously also apply to any patrimonial damage
incurred or to be incurred consequent upon the birth of the child. All of
that angst and expense was of the appellant's own making and cannot be
attributed to any negligence on the part of the respondents' employees. In
short, the causal chain was broken by the appellant's own failure to institute
the necessary proceedings to terminate her pregnancy. It follows that the
appellant's claim for damages must be limited to the period between the date of
her rape and the date of confirmation of her pregnancy.
What remains is to quantify the appellant's entitlement to
damages. This task is rendered somewhat difficult by the appellant's failure
to identify any comparative awards in similar cases. Nevertheless, this
omission should not preclude the computation of such damages as might be deemed
just and equitable on the facts in casu, commensurate with the
indisputable anguish and stress that the appellant was subjected to during the
period alluded to above. In any event, this is a matter for determination by
the court a quo after due inquiry into the appellant's personal,
social and economic
circumstances.
As for costs, the appellant has partially succeeded in this
appeal and on her original claim in the court below, and then only as against
the first and second respondents and not against the third respondent.
For that reason and having regard to the relatively novel nature of her
claim, we take the view that there should be no order as to costs.
DISPOSITION
In the result, this Court makes the following order:
1. The appeal is partially allowed
to the extent that the dismissal of the appellant's claim for damages for pain
and suffering, arising from the failure to prevent her pregnancy, be and is
hereby set aside.
2. The claim for damages for pain
and suffering is remitted to the court a quo for the grant of default
judgment, in such amount as the court may assess and determine after due
inquiry, together with the question of costs.
3. For the avoidance of doubt, the
dismissal of the appellant's claim for damages for the maintenance of her minor
child is hereby confirmed and upheld.
4. There shall be no order as to
costs.
GARWE JA:
I agree.
GOWORA JA:
I agree.
Scanlen & Holderness, appellant's legal
practitioners
Civil Division of the
Attorney-General's Office, respondents' legal practitioners
