Women and Justice: Court: Supreme Court of Zimbabwe

Domestic Case Law

Mapingure v. Minister of Home Affairs Supreme Court of Zimbabwe (2014)

Abortion and reproductive health rights, Sexual violence and rape

A month after the rape, the appellant’s pregnancy was formally confirmed, she then informed the investigating police officer of her pregnancy who referred her to a public prosecutor. She was told by the prosecutor that she had to wait until the rape trial had been completed to have her pregnancy terminated. At the direction of the police, she returned to the prosecutor’s office four months later and was advised that she required a pregnancy termination order. The prosecutor requested that a magistrate certify the termination. The magistrate said he could not assist because the rape trial had not been completed. She eventually obtained the necessary magisterial certificate nearly six months after the rape, the hospital felt that it was no longer safe to carry out the termination procedure. The appellant carried to full term and gave birth to a child. The applicant brought an action against the Ministers of Home Affairs, Health and Justice for damages for the physical and mental pain, anguish and stress she suffered and care for the child until the child turned 18. The basis of the claim was that the employees of the three Ministries concerned were negligent in their failure to prevent the pregnancy or to expedite its termination. The particulars of negligence were itemized. Her claim was dismissed. The questions for determination on appeal were (i) whether or not the respondents’ employees were negligent in responding to the appellant, (ii) if they were, whether the appellant suffered any actionable harm as a result of such negligence and, (iii) if so, whether the respondents were liable for damages for pain, suffering, and the care of her child. The Supreme Court held, on appeal, that the State was liable for failing to provide the appellant with emergency contraception to prevent the pregnancy and ordered it to pay damages. However, the court dismissed the claim that the State was liable for failing to ensure a timely termination of the pregnancy and in turn that they were liable to pay for the care of the child. The case was referred back to the High Court for a determination of the amount of damages.

M.M. v. Minister of Home Affairs & 2 Others Supreme Court of Zimbabwe (2014)

Abortion and reproductive health rights, International law, Sexual violence and rape

This case was brought by the complainant, who was attacked and raped by robbers at her home.  She immediately reported the matter to police and requested a medical practitioner to prescribe emergency contraception.  The medical practitioner said he required the presence of a police officer to do so.  Because she was advised at the police station that the officer who had dealt with her case was not available, the victim returned to the hospital, where she was refused treatment without a police report.  The next day she went to the hospital with another police officer and was informed that the prescribed 72 hours had already elapsed.  When the complainant was confirmed pregnant, she indicated to the prosecutor that she wanted her pregnancy terminated, but was told that she had to wait until the rape trial had been completed.  She finally obtained the necessary magisterial certificate, but when she sought the termination, the hospital matron felt that it was no longer safe to carry out the procedure.  After the full term of her pregnancy, the complainant brought an action against the Ministers of Health, Justice and Home Affairs for pain and suffering endured as well as maintenance of the child.  The High Court dismissed her claim that the employees of the respondents had been negligent in their failure to prevent the pregnancy, and subsequently to facilitate its termination.  She appealed the decision to the Supreme Court, which determined the claim by applying the test for negligence, finding the doctor negligent for having failed to take reasonable steps to prevent the pregnancy and the police negligent for failing to timely take the victim to the doctor for her pregnancy to be prevented.  The Supreme Court recognized the relevance of regional and international human rights norms and standards, making reference to various provisions relating to the reproductive rights of women in CEDAW and the Maputo Protocol, but held that, pursuant to Constitutional terms, these cannot operate to override or modify domestic laws until they are internalized and transformed into rules of domestic law.  Furthermore, the Supreme Court determined that it was 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.  Ultimately, the Supreme Court partially allowed the appeal and granted the complainant general damages for pain and suffering arising from failure to prevent her pregnancy.  Although conceding that Zimbabwe’s Termination of Pregnancy Act is “ineptly framed and lacks sufficient clarity as to what exactly a victim of rape is required to do when confronted with an unwanted pregnancy,” the Supreme Court dismissed the complainant's claim for damages for pain and suffering beyond the time her pregnancy was confirmed and for the maintenance of her minor child, as the authorities could not be liable for not assisting her to terminate the pregnancy because they do not have any legal duty to initiate and institute court proceedings on her behalf.