LM and Others v Government of the Republic of Namibia (I 1603/2008, I 3518/200, I 30007/2008) [2012] NAHC 211 (30 July 2012)

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REPORTABLE CASE NO: CASE NO: CASE NO: IN THE HIGH COURT OF NAMIBIA I 1603/2008 I 3518/2008 I 3007/2008 MAIN DIVISION, HELD AT WINDHOEK In the matter between: LM MI NH 1ST PLAINTIFF 2ND PLAINTIFF 3RD PLAINTIFF and THE GOVERNMENT OF THE REPUBLIC OF NAMIBIA DEFENDANT CORAM: HOFF, J Heard on: 01 – 03 June 2010; 01 – 03 September 2010; 06 – 08 September 2010; 10 September 2010; 18 – 20 January 2011; 27 January 2011 Delivered on: 30 July 2012 JUDGMENT HOFF, J: [1] The plaintiffs institu
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    REPORTABLE  CASE NO: I 1603/2008CASE NO: I 3518/2008CASE NO: I 3007/2008IN THE HIGH COURT OF NAMIBIAMAIN DIVISION, HELD AT WINDHOEK In the matter between: L M 1 ST PLAINTIFFM I 2 ND PLAINTIFFN H 3 RD PLAINTIFF and THE GOVERNMENT OF THE REPUBLIC OF NAMIBIA DEFENDANTCORAM: HOFF, J Heard on:   01  – 03 June 2010; 01  – 03 September 2010; 06  – 08 September 2010;10 September 2010; 18  – 20 January 2011; 27 January 2011 Delivered on: 30 July 2012 JUDGMENTHOFF, J: [1] The plaintiffs instituted actions against the defendant for damageswhich arose from what they allege in their respective pleadings to be an unlawfulsterilisation performed on them without their consent by medical practitioners in the  2 employ of the State at State Hospitals, alternatively on the grounds of a breach of a dutyof care that these medical practitioners owed to each of the plaintiffs.[2] In a second claim each of the plaintiffs alleged that the sterilizations were done aspart of a wrongful practice of discrimination against them based on their HIV status andthat it amounts to a breach of their basic human rights as guaranteed by the provisions of the Constitution of the Republic of Namibia. It is not disputed that the HIV status of allthree plaintiffs are HIV positive.[3] The first claim is pleaded by the plaintiffs in similar terms and it is necessary only to refer to the first plaintiff‟s particulars of claim. The first plaintiff‟s particulars of claim reads, inter alia  , as follows: “3. On or about 13 June 2005 and at Oshakati State Hospital, Oshakati, the plaintiff was wrongfully and intentionally assaulted, alternatively wrongfully and negligentlycaused harm in that she was subjected to a sterilization procedure, alternatively asterilization procedure without her consent, by employees of the defendant, whichcaused her injury.4. In the alternative to paragraph 3 supra,  4.1 At all relevant times the employees of the defendant referred to inparagraph 3 supra  , had a duty of care to:4.1.1 Execute their duties without negligence;4.1.2 Not subject plaintiff to a sterilisation procedure, alternatively asterilisation procedure without her consent and without explainingto her the concomitant or resultant risks and consequencesflowing from, or incidental to, a sterilisation procedure;4.1.3 Take all reasonable steps to safeguard the plaintiff from beinginjured or from any loss or damages being occasioned to her;  3 4.1.4 Would take due and proper care of the plaintiff after her admissionto, and at all relevant times whilst being a patient at, the OshakatiState Hopsital, Windhoek.4.2 On or about 13 June 2005 and at the Oshakati State Hospital, Windhoek,plaintiff was subjected to a sterilisation procedure;4.3 The aforesaid sterilisation procedure constituted, or resulted, from awrongful and negligent breach of one or more or all of the duties of care set out in paragraph 4.1 above, which defendant as well as defendant‟s aforementioned employees at all relevant times had to and in respect of the plaintiff;4.4 As consequence of the negligent breach of duty of care asaforementioned, plaintiff suffered injuries.5. At all relevant times hereto, the aforementioned employees of the defendant actedwithin the course and scope of their employment with the Ministry of Health andSocial Services and with the defendant, alternatively within the ambit of the riskcreated by such employment. The names and further particulars of suchemployees are unknown to plaintiff, save to state that they at all material timeswere personnel employed at, or attached to, the Oshakati State Hospital,Oshakati, Namibia. CLAIM 1 6.  As a result of the aforesaid sterilisation procedure and the conduct of defendant‟s employees referred to in paragraph 3, alternatively 4 supra, the plaintiff sufferedthe following violation and infringements of her common law rights and withoutderogating from the generality thereof, her common law and personality rights andmore particularly6.1 will be unable to bear children in future and found a family;6.2 lost marriage prospects;6.3 suffered and continues to suffer ongoing mental and emotional anguish;6.4 endured and continues to endure shock, pain and suffering;  4 6.5 suffered and continues to suffer infringement of her rights to bodily andpsychological integrity;6.6 was subjected to torture or to cruel and inhuman or degrading treatmentor punishment;6.7 suffered and continues to suffer a violation of her dignity.7. Alternatively to paragraph 6 supra  , and as a further consequence of the aforesaid wrongful and unlawful conduct by defendant‟s aforementioned employees as set out in paragraph 3, alternatively 4 supra, plaintiff suffered a violation and aninfringement of her rights guaranteed and protected under the NamibiaConstitution, particularly:7.1 Her right to life in terms of Article 6 of the Constitution;7.2 Her right to liberty in terms of Article 7 of the Constitution;7.3 Her right to human dignity in terms of Article 8 of the Constitutions;7.4 Her right to found a family in terms of Article 14 of the Constitution.8. As a result of the facts and circumstances as set out in paragraph 6 supra,  alternatively paragraph 7 above, plaintiff suffered loss or damages (both past andcontingent) in the amount of N$1 million. It is not reasonable nor practical toapportion the aforementioned globular amount of N$1 million to any of thenumerous and part icular infringements, violations and invasions of plaintiff‟s rights suffered by her as referred to in paragraph 6 and 7 above.9. In as much as the aforesaid claim for loss or damages is based on what is set outin paragraph 7 above, plaintiff claims such loss or damages as monetarycompensation in terms of Articles 25 (3) and 25 (4) of the Namibian Constitution. CLAIM 2 10. The aforesaid sterilisation of the plaintiff by the defendant‟s aforementioned employees was a consequence of her being a woman who is HIV-positive.11. As a result, the aforesaid sterilisation was a wrongful and unlawful practice of impermissible discrimination against the plaintiff.
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