Isaiah Morewagae
7 July 2009
The High Court in Lobatse has ruled that a woman must pay P7,000 in damages for publishing confidential HIV/AIDS information.
In the first case of its kind, the court said that Sadi Nokane will pay Obakeng Madubela for uttering insults that revealed to others her HIV status. Nokane allegedly committed the offence in December 2006 and June 2007. It is said that she uttered the insults within earshot of several people whom Madubela had grown up with.
Some of the words were: "Dumela Meleko, ke botsa gore o tlhala leng ngwana wa batho pele o mo tsenya mogare" and "o mosadi yo o paletsweng ke lenyalo ka lebaka la mogare.
Ke sa le ke go boditse gore bokete ja mogare wa gago bo tsamaya fo kae". Madubela was represented by Botswana Network on Ethics, Law and HIV/AIDS, acting director Uyapo Ndadi who told the court that the words had hurt her deeply and lowered her self-esteem. She claimed P50,000 in damages.
Justice David Newman held that the publication of the otherwise confidential information about Madubela was done with the intention to cause distress and actually did so. "This was in the light of the plaintiff's testimony that the utterances affected her personal relations, her catering business as well as her political career," Newman said. He pointed out that the Botswana courts have long recognised that an action is available against any person who has committed an intentional wrong causing injury to someone's dignity.
The court however pointed out that Botswana's Constitution, as contrasted to the South African Constitution, does not extend to the unlawful disclosure of a person's private information.
Ndadi said that the case will not only act as a deterrence to people who maliciously disclose others HIV/AIDS status but will go a long way in showing those that have been wronged of the availability of redress before the Botswana courts. "Batswana hitherto will know that all human beings, irrespective of their health status, have the intrinsic value of dignity and privacy which ought to be protected and respected," Ndadi said. "While we celebrate the advent of this groundbreaking decision, it is BONELA's opinion that the decision of the learned judge, as regards the right to privacy and disclosure of someone's private information, is but an indication of the inadequacy of our Constitution," Ndadi asserted. He called on the government to consider undertaking serious legislative and constitutional reforms that will see, among other things, full protection of the right of persons living with HIV/AIDS.
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