Over the past few years, there have been reports in South Africa of women being wrongfully sterilised. Various explanations have been given for this, most of which are discriminatory in nature, as these wrongful procedures tend to be performed on women living with certain chronic diseases, of a certain colour, of specific background, etc.
It is interesting to note that even though there are laws dealing particularly with the issue of sterilisation in South Africa, our courts are seldom faced with wrongful sterilisation cases. This presents certain issues when lawyers are faced with potential cases of this nature, as their evaluation and assessment of the merits of the matter are hampered by lack of case law in this regard.
Given the costs associated with litigating over such matters, lack of case law may be one of the discouraging factors for some lawyers, as it may be difficult to evaluate and determine the chances of success. Nevertheless, the law is trite in this regard and it is imperative that the victims are made aware of what legal avenues are available considering the dire consequences of unlawful sterilisation. As such, here’s a brief discussion of the pertinent legal principles related to sterilisation in South Africa, as well as an overview of possible compensation for victims.
The starting point is the Constitution of the Republic of South Africa, 1996. Wrongful sterilisation does not only trigger specific provisions of the Bill of Rights, but also triggers the founding values and the underlying objectives of the Constitution. Wrongful sterilisation infringes on the following founding values of the Constitution:
- Human dignity, achievement of equality and the advancement of human rights and freedoms
In addition to the founding values, wrongful sterilisation is against various express direct provisions of the Constitution, including:
- Right to equality: Violates the right to full and equal enjoyment of all rights and freedoms;
- Right to dignity: Violates right to inherent human dignity and the right to have one’s dignity respected and protected;
- Freedom and security of the person: Deprives the person of their right to not be treated in a cruel, inhuman and degrading manner; violates right to bodily and psychological integrity which includes the right to make decisions concerning reproduction; to security in and control over their body; not to be subjected to medical or scientific experiments without their informed consent;
- Right to health care: Violates their right to health care services including reproductive health care.
These are just a few of the most apparent rights that are violated when women are wrongfully sterilised. As one can imagine, sterilisation can have far-reaching consequences related to culture and religion; impact on families and marriages; stigmatisation, etc.
This legislation provides for the right to be sterilised and clarifies the requirements for a lawful sterilisation. Therefore, if a sterilisation is inconsistent with the provisions of this Act it is unlawful and, automatically, unconstitutional.
The purpose of the Sterilisation Act is to provide for the right to sterilisation and provide guidance regarding the circumstances under which it may be performed. The Act was promulgated in recognition of the constitutional rights to bodily and psychological integrity of persons, which includes the right to make decisions concerning reproduction. In relation to people who are capable of consenting, the Act, under Section 2, states that no one is prohibited from sterilisation performed on him or her if he or she is a major (18 years+) and capable of consenting. Further to this, the Act, under Section 4, defines ‘consent’ for the purposes of sterilisation as follows:
- Consent means consent given freely and voluntarily without any inducement and may only be given if the person given same has: (1) been provided a clear explanation and adequate description of the proposed plan of the procedure and consequences, risks and the reversible or irreversible nature of the procedure; (2) been given advice that the consent may be withdrawn any time before the treatment and signed the prescribed consent form.
These are the most pertinent provisions of the Sterilisation Act for the purposes of the discussion.
Legal recourse available to victims
Based on the provisions of the Sterilisation Act, if consent is not given, the procedure is unlawful and therefore the victim may have legal grounds for suing the relevant personnel and/or institution that performed the procedure.
Besides the civil claim that the victim may have, the Act provides, under Section 5, that failure to comply with the Act is an offence which may attract either a fine or imprisonment for a period not exceeding 5 years. For the purposes of compensation, the victim may claim for damages under various heads of damages including past/future medical expenses; past/future loss of income; and general damages. There may also be room to argue for constitutional damages. The claimable heads of damages will obviously be dictated by the unique facts and the circumstances of each case.
Considering the implications that sterilisation may have for an individual, it is crucial that a disgruntled party timeously explores the appropriate legal avenues available to them.