(June 3, 2010) It was reported on June 2, 2010, that six women represented by the Legal Assistance Centre (LAC), a local public-interest law firm, are suing the Namibian government for allegedly sterilizing them without their consent on account of their (positive) HIV status. (Catherine Sasman, Sterilisation Case in Court, NEW ERA, June 2, 2010, available at http://www.newera.com.na/arti
The plaintiffis are hoping for a court declaration that their sterilization on account of their HIV status was discriminatory and a violation of their human rights. They are also seeking damages for procedures administered on them without their consent by state-employed medical practitioners. Alternatively, they are claiming damages for breach of duty of care that the medical practitioners concerned owed them as patients. (Id.)
The High Court of Namibia had rejected a preliminary objection lodged by the state at the end of 2009 that the case should be dismissed for failure to comply with the requirements of the Public Service Act; as a result, the suit was allowed to go forward. (Id.) The Public Service Act provides in Section 33:
(1) No legal proceedings of whatever nature shall be brought in respect of anything done or omitted in terms of this Act unless such proceedings are brought within 12 calendar months from the date on which the claimant had knowledge or might reasonably have been expected to have knowledge of that which is alleged to have been done or omitted, whichever is the earlier date.
(2) No such legal proceedings shall be commenced before the expiry of 30 days after written notice of intention to bring such proceedings, containing full particulars as to that which is alleged to have been done or omitted, has been served on the defendant. (§33, Public Service Act, 1995 (Act 13 of 1995), 1121 GOVERNMENT GAZETTE OF THE REPUBLIC OF NAMIBIA (Aug. 7, 1995), Institute for Security Studies portal, available at http://220.127.116.11/opencms/export/sites/default/grnnet/GRNOverview/Laws
_legislation/downloads/PUBLIC_SERVICE_ACT_13_OF_1995.pdf (unofficial source).)
In dismissing the state's objection, the Court noted that the application of the Public Service Act is limited to matters of employment of public servants and it does not extend to contractual or tortuous claims against the government by non-public servants. (Victory in Namibia's High Court. Case of Forced Sterilisation of HIV Positive Women Can Continue on Merit, ARASA, Dec. 16, 2009, available at http://www.arasa.info/node/189.)
The Court will hear testimonies of the plaintiffs during the first week of June 2010. (Sasman, supra.)