THE Supreme Court of Zimbabwe yesterday ordered the government to compensate a woman who gave birth after she was raped by robbers.
The court said officials in the Ministry of Home Affairs and their counterparts in the then Health and Child Welfare ministry acted negligently by delaying to terminate the pregnancy after the victim reported that she had been raped.
Judge of Appeal Justice Bharat Patel said the Minister of Home Affairs and Minister of Health and Child Welfare were accountable for their employees’ actions and, as such, should be ordered to compensate the rape victim.
“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,” Justice Patel said.
The Supreme Court, however, absolved the Minister of Justice, Legal and Parliamentary Affairs of any wrongdoing in the matter.
The victim told the court that on April 4 2006, she was attacked and raped by robbers at her home and immediately reported the matter to police. She also said she requested that she be taken to a doctor to be given medication to prevent pregnancy and any sexually transmitted infection.
The court heard that she was later taken to hospital and attended to by a Dr Kazembe to whom she repeated her request to prevent pregnancy, but the doctor only treated her injured knee.
She said the doctor told her he could only attend to her request for preventive medication in the presence of a police officer and further indicated the medication had to be administered within 72 hours of the sex attack having occurred.
Efforts to get assistance from the police and the hospital proved futile resulting the victim giving birth in December of the same year.
The court, however, remitted the victim’s claim of damages for pain and suffering to the High Court for the granting of a default judgment in such amount as the court may assess and determine after due inquiry, together with the question of costs.
In 2012, the woman made a High Court application seeking an order to compel the State to pay damages and maintain her child, but the matter was dismissed.
Justice Patel upheld the dismissal of her maintenance claim against the State, saying the liability of a third party outside any familial relationship was traditionally confined to one who would have deprived a dependant of support by wrongfully causing the death or incapacitation of the person supporting the claimant.
Justice Patel’s judgment was passed with the concurrence of Justices Paddington Garwe and Anne-Mary Gowora.