Supreme Court in landmark ruling on abortion

In a landmark ruling today, the Supreme Court directed that a Chegutu woman who was gang raped by robbers at her Chegutu home in 2006 be awarded damages for the pain and suffering arising from the failure by the police and public health officials to timeously prevent her unwanted pregnancy.

The woman, Mildred Mapangure, had her appeal for damages for physical and mental pain as well as maintenance of her child dismissed by the High Court in 2012.

In the appeal, she sought $10, 000 for physical and mental pain as well as $41, 904 for maintenance in respect of her minor child.

Mapangure’s claim cited the Minister of Home Affairs, the Minister of Health and Child Welfare as well as the Minister of Justice, Legal and Parliamentary Affairs as first, second and third respondents, respectively.

According to court papers, Mapangure was attacked and raped by armed robbers at her home in Chegutu on April 4 2006 after which she lodged a report with Chegutu police and requested to be taken to a medical doctor to prevent an unwanted pregnancy and sexually transmitted diseases.

Later that day, she was taken to hospital but the doctor, identified as Kazembe only, treated her injured knee saying he could only give her preventive medication in the presence of a police officer.

The doctor further indicated that he could only administer the preventive medication within 72 hours of the sexual intercourse.

The following day, Mapangure went back to the police and was told that the police officer who dealt with her case was not on duty and when she went back to the hospital, the doctor insisted he could only treat her if a police report was 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 hours had already lapsed. Eventually on 5 May 2006, the appellant’s pregnancy was formally confirmed,” read the court papers.

After this, Mapangure went to see the investigating officer in the case who referred her to a public prosecutor where she indicted that she wanted her pregnancy terminated but was told to wait for the completion of the rape trial.

The Magistrate in the case was of the same opinion as well and Mapangure finally got the magisterial certificate on September 30 2006 but the hospital matron who had been assigned to carry out the termination of the pregnancy felt it was no longer safe to do so and declined to carry out the procedure.

Mapangure eventually gave birth to her child on 24 December 2006.

In passing judgment today, the Supreme Court upheld Mapangure’s submissions that the doctor involved in the case was negligent of the fact that failing to administer medication to Mapangure would result in her falling pregnant.

The court upheld that on their part, the police failed to compile the requisite report or accompany the appellant to a doctor despite spirited efforts by her.

The court upheld as well that the police failed to treat the case as urgent.

“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. They were under a legal duty to act reasonably and they dismally failed to do so,” read the court papers.

In passing judgment, the Supreme Court however dismissed claims for damages for the upkeep of Mapangure’s minor child.

The court directed that the case be referred to the High Court for a determination on the amount to be paid to Mapangure.

“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. 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,” read part of the judgment.

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