No Time for Justice? Obstetric Violence, Damages Claims and Prescription Periods in South African Law

Abstract

Obstetric violence is currently not acknowledged as a form of gender-based violence in South African law. In this article I deal with the various issues associated with this failure to correctly categorise obstetric violence. One of the issues relates to access to legal recourse for survivors through delictual claims (torts). Delictual claims are wrongful acts or limitations of rights that can lead to legal liability in the form of monetary compensation. The current framing of obstetric violence as medical malpractice limits women's time to launch a case to only three years after the violation. To show how this issue of prescription (a legal principle where an outstanding debt can be extinguished after a prescribed time period) plays out, I focus on the 2020 report by the South African Commission for Gender Equality (CGE) on the forced or coerced sterilisation of women living with HIV at state healthcare facilities. I also examine the current case of the Centre for Applied Legal Studies (CALS), a university-based human rights law clinic, which represents over 40 women who have experienced different forms of obstetric violence at state-run facilities. In both of these examples, I explain how justice through legal recourse is denied to these victims or survivors through the mischaracterisation of obstetric violence as medical malpractice in current South African law. To show that the three-year ‘limit’ or prescription period to institute a legal claim is unjustifiable, I explore three reasons why women may not choose to or be able to proceed with a legal claim within that time period. The first of these relates to the ‘personal’ barrier women face around acknowledging they have experienced obstetric violence and bringing a claim against the state. The second, the ‘political’ barrier, includes the general and prevalent systemic gender discrimination experienced by women in South Africa and the specific barriers women face around access to dignified treatment in the country's public healthcare system. Finally, an ‘economic’ barrier is the general inaccessibility of legal representation for economically disadvantaged people in the country. Proceeding from the above, I then argue that by acknowledging obstetric violence as a form of gender-based violence and aligning it with legislation around prescription periods for other forms of gender-based violence (such as sexual offences), the burdens related to access to justice (at least in delict) can be lightened for survivors.