29 September 2009
BONELA Sets Legal Precedent in Wrong Diagnosis Case

The Botswana Network on Ethics, Law and HIV and AIDS (BONELA) today scooped P150 000.00 in damages on behalf of Kgakgamatso Sekgabetlela who was wrongfully diagnosed with HIV and consequently sued the Government of Botswana for P500 000.00 for negligence. The groundbreaking judgment, which sets a legal precedent in Botswana, was handed down today (29 October 2009) by Justice Key Dingake at the Lobatse High Court.

In his judgement Justice Dingake acknowledged that Sekgabetlela had been traumatized by the wrong HIV positive result to the extent that she was later diagnosed as suffering from Post Traumatic Stress disorder by a clinical psychologist who gave expert evidence before the Court. He also took into account the fact that Kgakgamatso Sekgabetlela had at one point contemplated suicide due to the inevitable mental anguish that she suffered as a result of the misdiagnosis, her feeling of helplessness and hopelessness, stress exerted by stigma and discrimination from society and the near collapse of her marriage. Justice Dingake rightly noted that stigma is a compelling factor, hence "...it would be cruel to underestimate the pain and suffering that a person who believes is HIV positive may be subjected to."

In addition, justice Dingake pointed out that even though the point was not fully pursued in the plaintiff’s pleadings; "It was conceivable that the facts and circumstances of the case may have had a bearing on the plaintiff’s right to dignity given that it is true that our society stigmatizes those living with HIV/AIDS and that such stigmatization is not consistent with the constitutional value of human dignity."

BONELA Legal Officer, Bonolo Dinokopila opined that "this is a groundbreaking case, the first of its kind in Botswana and it obviously sets a legal precedent not only in Botswana but in other jurisdictions too. The most important thing highlighted by Justice Dingake is that the stigma associated with HIV/AIDS is so pervasive and beyond doubt. This I believe is BONELA's erstwhile position. Hence, BONELA urges all healthcare professionals to respect everyone despite their actual or perceived HIV status and to uphold their professional ethical standards."

Sekgabetlela’s case brings to light the fact that the response to HIIV and AIDS cannot be won without infusing human rights into public health interventions. It challenges the public health provider to go beyond the call of duty in accommodating individual needs, as a one size fits all will prove too limiting. The State can also providing capacity building and mentoring in bringing awareness of human rights in general and stigma and discrimination in particular, to aid delivery of a holistic package in fighting HIV and AIDS.

For more information, please contact Doris Kumbawa on Cell: 74 434 709, Tel: 393 2516 or
Email: media@bonela.org