WINDHOEK – The case in which Government is being taken to court over the alleged forced sterilisation of six women at state medical facilities reopened in the High Court yesterday, and is likely to continue next week.
Each of the plaintiffs has two claims. In the first instance, the plaintiffs claim damages from the alleged sterilisations without their consent by medical practitioners employed at state hospitals, or alternatively on the grounds of breach of duty of care that medical professionals owed each of the plaintiffs.
The second claim is that the sterilisation constituted a wrongful and unlawful practice of discrimination against each of the women due to their HIV-positive status, and is thus in breach of their basic human rights.
These cases came to the attention of the Legal Assistance Centre (LAC) in January 2008, which is now representing six of the initial 20 cases that came to light. Senior counsel, Dave Smuts, is acting on behalf of the LAC. The women’s claims were consolidated in July 2009, and are being heard at the same time before the court. The matter was first heard before the High Court in December last year. Then, legal representatives of Government raised a legal point that the Public Service Act of 1995 applied to the litigation.
The Public Service Act requires that any person wishing to institute legal action against Government must do so within 12 months of the action arising, and only after a written notice of one month has been given to Government. Justice Collins Parker of the High Court last year ruled that the Public Service Act does not apply in this matter. This is why the case is now continuing in the same court.
The court will hear evidence of the plaintiffs – whose names are not to be made public by the court or media – during this week before cross-examination by the state’s representation, Essie Schimming-Chase.
In his opening remarks, Smuts said the plaintiffs will give evidence on the consequences of the alleged illegal sterilisation procedures, with expert evidence given by Dr Matti Kimberg, a gynaecologist and obstetrician, concerning the procedures performed on each of the plaintiffs, their invasive nature and consequences.
Kimberg has conducted a laparoscopy on each of the plaintiffs. Smuts said expert evidence on psychological and other effects on the plaintiffs will not be led. This, he said, will be dealt with at a later date.
Notwithstanding, he said, the alleged forced sterilisation procedures still constitute a profound invasion of his clients’ rights to dignity and personality.
“What is pertinent for present purposes, is the nature of the invasion of the rights of the plaintiffs,” said Smuts. Government denies that the sterilisation on the plaintiffs was performed without their consent, stating that each of the women consented to it. It further claims that the sterilisation procedures constitute unlawful discrimination.
Smuts said each of the women underwent the procedure and that they were subjected to it when they went to the state hospitals while in labour.
One common thread throughout all the cases, said Smuts, is that each of the women is HIV-positive. Smuts said the alleged forced sterilisations were preformed on the plaintiffs based on outdated notions that HIV-positive women should not have children.
He contended that with improved treatment of HIV patients, people could continue to live normal lives, which includes being able to have children.
When giving evidence yesterday, the first plaintiff said she was advised to have a Caesarean section since she was too weak and tired to give normal birth.
She told Judge Elton Hoff that the medical doctor who made this decision did not say anything about sterilisation.
She said it was only before being taken to the theatre for the Caesarian section that she was carted into a delivery room where a nurse informed her that the doctor will remove her uterus “because all HIV-positive people must have it removed”, according to her evidence, as translated in court.
The woman was given a form to sign, with a heading that read, “Consent to an operation”, while the form further read that “it was to have elective c/s and BTL due to her RVD status …”
The hearing continues.