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.
(i)
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.
(ii)
Secondly, the matron failed ...
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.
(i)
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.
(ii)
Secondly, the matron failed to take reasonable steps to terminate the
pregnancy.
(iii)
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 [Chapter 15:10]. 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 section 2(1) of the Termination
of Pregnancy Act [Chapter 15:10], as read with Statutory Instrument 66 of 2010,
S.I.66 of 2010, the administration of the Termination of Pregnancy Act [Chapter
15:10] is assigned to the Minister of Health and Child Welfare. i.e.
the second respondent. There is nothing specifically stated in the Termination
of Pregnancy Act [Chapter 15:10] pertaining to the administrative roles of the
first and third respondents.
The
circumstances in which pregnancy may be lawfully terminated are enumerated in section
4 of the Termination of Pregnancy Act [Chapter 15:10] 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 section 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 section 5(4)(a) (i) and (ii) of the Termination of Pregnancy
Act [Chapter 15:10], 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 Termination of Pregnancy Act [Chapter 15:10] 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.
Counsel
for the appellant submits that it is the police who should have presented the
relevant documents to the magistrate, in terms of section 5(4)(a) of the Termination
of Pregnancy Act [Chapter 15:10], and that any further affidavit by the
appellant under section 5(4)(b) of the Termination of Pregnancy Act [Chapter
15:10] 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 section 5 of the Termination of Pregnancy Act [Chapter 15:10] in
finding that an affidavit from the appellant was a prerequisite for the
issuance of a magisterial certificate. In support of his argument, counsel for
the appellant 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 counsel for the
appellant'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 section 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…, 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 subparagraphs (a) and (b)
of section 5(4) of the Termination of Pregnancy Act [Chapter 15:10] 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 subparagraph (b), as opposed to “unlawful intercourse”, may
well be a drafting anomaly. However, it follows immediately after the reference
in subparagraph (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 section 5(4) of
the Termination of Pregnancy Act [Chapter 15:10].
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 section 5(4) of the Termination of Pregnancy Act [Chapter
15:10], 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..,.
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 section
5(4) of the Termination of Pregnancy Act [Chapter 15:10]. 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 Minister of Law and Order v
Kadir 1995 (1) SA 303 (A) commends
itself for application in the present context.
Even
on the broadest interpretation of the Termination of Pregnancy Act [Chapter
15:10], 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 section 5(4) of the Termination of
Pregnancy Act [Chapter 15:10] 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 Termination of Pregnancy Act [Chapter 15:10], and the third respondent, in
his capacity as the Minister charged with the passage of amending legislation
through Parliament.
