ISIAH MURERIWA: A CASE NOTE ON THE JUDGMENT IN MILDRED MAPINGURE-v- MINISTER OF HOME AFFAIRS & 2 OTHER MINISTERS.
The High Court of Zimbabwe, sitting at Harare on the 12th of December 2012 handed down judgement number HH 452/12 in the case of Mildred Mapingure -v- Ministry of Home Affairs, Ministry of Health and Child Welfare and Ministry of Justice, Legal and Parliamentary Affairs. In pronouncing the written judgement the court simply stated that the applicant‘s application for default judgement is dismissed with no order as to costs. I happened on that morning to have been seated next to the applicant, who not only seemed to be shocked by the outcome, but clearly ...view middle of the document...
Born of an unlawful and deplorable conduct, being born after such a long and protracted attempt to prevent her from being. That is what one could regard as a tragedy. A careful reading of this judgement, however, clearly shows that these other interpretations of his reference to “a tragedy’’ were very far from the judge’s imagination when he made that brief pronouncement. There is no doubt in my mind that what the judge referred to as tragic are the facts of the case he then was seized with and nothing more.
I take a different look at this. l do not mean to down-play the tragic nature of the facts, the tragedy of being born under the circumstances of Vimbainashe nor do l intend to down-play the tragedy of the multitude of woman finding themselves in the position of Mildred. With all due respect, l find the judgement of Bere J itself as a tragedy and borrowing from his own words, this judgement is no doubt a tragedy. It is a tragedy not only to the applicant in this matter. The judgement is tragic to the administration of justice in Zimbabwe. It is a tragedy to Zimbabwean jurisprudence, a real tragedy to the realization of the special needs of women in our jurisdiction (and the need for our courts to authoritatively declare our government’s internationally accepted obligation to ensure the protection of women exposed to violence from the consequences of the violence visited upon them). It is indeed a true tragedy to our legal history and in the few pages that follow herein l shall endeavour to show how tragic this judgement really is to our law.
In Plaintiffs Further Supplementary Heads of Arguments page 8, l quoted verbatim, Robert E Keeton, writing as early as 1962 (Creative Continuity in the Law of Torts Harvard Law Review, Volume 75 Number 3 (1962) page 463 when he wrote as follows:-
‘’Any legal system to remain viable over a span of time, must have flexibility to admit change. To find solutions for a succession of differing problems in a continuously changing context, it must be creative. Creativity must build upon a solid foundation of continuity. Modern developments in tort law present acutely the problems of accommodating (these) competing demands for creativity and stability.’’
In those words Keeton, clearly shows how tragic the judgement and not just the facts in Mildred Mapingure-v- Minister of Home Affairs and 2 Other Ministers, is to Zimbabwean law.
BRIEF FACTUAL BACKGROUND.
For the sake of space, I will not repeat the facts of this matter as they are clearly set out in the judgment of Bere J. I refer the reader to pages 1 through to pages 4 of the judgment with the single correction that on page 2 thereof, in the place of the phrase “terminate pregnancy” as used therein by the Honourable Judge, should be replaced with the phrase “prevent pregnancy” in compliance with the exact words used by the applicant in her application and affidavit of evidence.
THE FIRST TRAGEDY.
On pages 4 – 5 of the judgement, Bere J pointed out...