Family sues MoH for P3.5m over neglected corpse
Innocent Selatlhwa | Tuesday September 12, 2023 06:00
The development offers the Mapogo family another opportunity to seek compensation for the costs of the hurried burial of their loved one, Nigel Mapogo, as well as the emotional distress and shock resulting from negligence.
The parties involved in this case include Doreen Mapogo, Obakeng Mapogo, Tlamelo Mapogo (a minor represented by Doreen Mapogo), Modise Tladi, Moses Kgosibodiba, Barati Tladi, Khutsanyana Selebogo as applicants, and the Attorney General, representing the Ministry of Health, as respondents. The origin of this legal matter dates back to August 18, 2012, when Nigel Mapogo and his sister Eli Tladi tragically lost their lives in a motor vehicle accident. Subsequently, their bodies were transported to Princess Marina Hospital for post-mortem examinations.
Unfortunately, the post-mortem for Nigel was delayed and by the time it was conducted, his body had decomposed to the point of being unrecognisable, making further examination impossible.
The doctors recommended immediate burial, which the family carried out on the same day. In response, the plaintiffs filed a lawsuit claiming damages for the costs associated with the hasty burial, emotional distress, and shock resulting from the alleged negligence.
They sought P26,000 in patrimonial damages and a substantial P3.5 million in non-patrimonial damages. While the High Court acknowledged negligence, it dismissed the plaintiffs' claims for damages, leading to the current appeal. The applicants were initially ordered to pay security for costs amounting to P7,500 by September 2022. However, they failed to comply with this order within the stipulated timeframe, prompting the need for condonation. In their application, the applicants argued that the evidence presented in court was sufficient to support their claims.
They emphasised the natural human response to being traumatised by the burial of an extremely decomposed body of a loved one. Additionally, they highlighted the court's refusal to award costs against the appellants, as well as the concession by the respondent's attorneys that the plaintiffs had indeed suffered emotional trauma and were entitled to compensation. They viewed the court's failure to award damages as hypocritical. Furthermore, the applicants challenged the court's doubts about their credibility when they stated they did not know the identity of the deceased they were burying. They clarified that their statement aimed to convey the extreme deformation of the deceased's body, not a question of identity, as it had been positively identified by a relative through clothing.
The family argued that the court had lost sight of the real issues in the case and focused on irrelevant matters. Regarding the psychologist's evidence, the applicants contested the court's perception that it was based solely on their statements without proof. They underlined that the psychologist had considered the possibility of patient exaggeration and prepared her assessment accordingly. They accused the court of taking a one-sided view of the evidence. In addition, the applicants challenged the court's acceptance of the psychiatrist's report, which asserted that emotional trauma should not be assessed using the psychologist's tools, as they were not validated for the local population. They claimed that this issue had never been raised with the psychologist and had not been disclosed in the summary of evidence, alleging that the defence had ambushed them after the psychologist had testified.
Finally, the family questioned the court's presumption that emotional turmoil, as described by them, could only be assessed by a psychiatrist and not through a psychological assessment.
They argued that this point was never put to the psychologist for her response. Tau ultimately agreed that the explanation for the delay in payment of security for costs was reasonable, especially in light of previous court rulings on similar matters. She also found that the applicants had presented an arguable case on appeal. Consequently, the court granted the application, allowing the applicants to pay the required security for costs within 14 days. The court's order included granting leave to pay security for costs out of time, requiring payment within 14 days, and directing the Registrar to set down the appeal for hearing. The ruling concluded with no order as to costs.