Case Summary: LM and Others v Government of the Republic of Namibia (1603 of 2008) [2012] NAHC 211 (30 July 2012)

LM and Others v Government of the Republic of Namibia

Project code¹

NAM

URL

https://namiblii.org/akn/na/judgment/nahc/2012/211/eng@2012-07-30

Citations

[2012] NAHC 211

Country

Namibia

Date of judgment

30 July 2012

Court

High Court

Location

Windhoek

Case type²

Application

Result

First claim – successful

Second claim – dismissed

Flynote³

Human rights and fundamental freedoms – unlawful Sterilisation – doctrine of informed consent - the required consent must be given freely and voluntarily and should not have been induced by fear, fraud or force - such consent must also be clear and unequivocal – the lack of informed consent amounts to an assault.

Legislation and International Instruments⁴

Legislation

• Articles 6,7,8, 10, 14, 25(3) and 25(4) of the Constitution of Namibia

Cases cited as authority⁵

• Castel v De Greef 1994 (4) SA 408 (C)

• Rogers v Whitaker (1993) 67 ALJR 47

• Lampert v Hefer NO 1955 (2) SA 507 (A)

• Louwrens v Oldwage 2006 (2) SA 161 (SCA)

• Santam Insurance Co. Ltd v Vorster 1973 (4) SA 764 (A)

• Mabaso v Felix 1981 (3) SA 865 (A)

Facts⁶

Three HIV positive women (plaintiffs) were unlawfully sterilized without their informed consent at State Hospitals. Despite the plaintiffs signing consent forms, it was discovered that informed consent was lacking. The plaintiffs, who were pregnant at the time, were asked to sign consent forms for sterilization during labour when they were in severe pain and unable to make informed decisions. The doctors and nurses on duty informed the plaintiffs that they would be sterilized without asking for their preferences or providing information about the effects and consequences of sterilization. They assumed that the plaintiffs had acquired the necessary knowledge about sterilization procedures from antenatal classes attended at the hospitals.

Summary⁷

The court found that the plaintiffs' rights to life, liberty, human dignity, and the right to form a family were violated by the sterilization. The court emphasized that informed consent for sterilization must be obtained when the patient is rational, without pain, and has adequate time for consideration, discussion with their partner and relatives, and making a reasoned decision. It should not be made under the duress of extreme pain.

The defense of volenti non fit iniuria ("no injury is committed against one who consents") was rejected by the court. The court held that written consent alone was insufficient, and the burden of proving informed consent rested with the defendant. The defendant failed to demonstrate that the plaintiffs were properly informed about the consequences of sterilization while in a rational state of mind and given sufficient time to consider the information.

The court also held that the plaintiffs had to prove that the sterilization was a result of their HIV-positive status and infringed their right to equality and freedom from discrimination as protected by the Namibian Constitution.

Decision/ Judgment⁸

The court found in favour of the plaintiffs regarding the first claim, as the defendant failed to prove that informed consent was obtained for the sterilization procedures.

The court dismissed the second claim as the plaintiffs could not provide credible evidence linking the sterilization to their HIV-positive status.

Basis of the decision⁹

The plaintiffs were asked to sign consent forms during the intense pain of labour, which the witness testified as highly undesirable. The pain experienced during labour can be so intense that it overwhelms the women, causing them to lose sense of reality and be solely focused on the pain.

Reported by

Date

Rada Stoilova

16 June 2023