HARARE - The Supreme Court yesterday awarded damages for pain and suffering to a Chegutu woman who was raped during a robbery attack, but dismissed her claim for State maintenance of her minor child.
The Supreme Court awarded damages for pain and suffering she incurred as a result of the unwanted pregnancy, and referred the case to the High Court for quantification of damages.
The woman was raped by armed robbers in 2006.
Despite having presented herself to the police, she was not assisted to access the necessary emergency health services including post-exposure prophylaxis and emergency contraceptives within the required time.
As a result, she fell pregnant and gave birth to one child.
She sued the government in the High Court for damages arising from the failure to prevent and terminate the pregnancy, pain and suffering as well as maintenance for the minor child.
She took her case to the Supreme Court after High Court Judge Francis Bere refused to grant a default judgment in her favour in December 2012.
“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,” Supreme Court Judge Bharat Patel said.
“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.”
The woman’s lawyer Isiah Mureriwa of Scanlen and Holderness said he would argue for damages arising from non-prevention of the pregnancy at the High Court.
Even though the court said the woman would not be given maintenance for the child, Mureriwa said he would seek damages for bringing up the child.
Judges yesterday said that the police should have foreseen that the woman would undergo mental anguish due to 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,” Patel said.
He, however, said the woman was also liable for the termination of the pregnancy.
In a statement released after the judgment, Zimbabwe Women Lawyers Association (Zwla), which bankrolled the woman’s suit, said: “We are celebrating the landmark ruling by the Supreme Court of a case which upholds and protects women’s human rights.”
Abigail Matsvayi, Zwla programmes coordinator, said: “It is a landmark judgment that reemphasizes the responsibility of duty bearers to act diligently. Furthermore, it highlights that their failure to act can give rise to liability. It gives the police an extra duty to act ‘outside and beyond’ their ordinary mandate so as to assist citizens.”
Matsvayi said that the judgment brings to the fore the need to amend the Termination of Pregnancy Act to be clear on what exactly a survivor of sexual violence is required to do when confronted with an unwanted pregnancy.
“We therefore, call for the alignment of laws to the new Constitution to factor in some of the relevant amendments for the advancement of women’s rights. Consequently, perpetrators of sexual violence should be prosecuted,” she said.