A doctor who was raped at the Pelonomi Tertiary Hospital in Bloemfontein in 2010 has turned the spotlight on the employer’s legal responsibility to ensure the safety of staff at work.
The doctor apparently lodged a multimillion-rand damages claim against the Free State’s health MEC following her ordeal.
At the time of the doctor’s rape, it was alleged that perimeter fencing was under repair and the lights on a staircase were not working when she did her night shift ward rounds.
A registrar specialising in paediatrics, she was attacked while heading for the neonatal unit on the ground floor of the hospital.
She was struck with a brick in the face and raped by a 16-year-old intruder who had gained access to the hospital premises.
The rapist was sentenced to 15 years’ imprisonment, and the doctor’s subsequent claim against the provincial department is likely to have a bearing on future claims of this nature.
The Free State department of health is under the administration of the provincial treasury, and its legal department is still studying a Supreme Court of Appeal judgment handed down in October.
The spokesperson for the department of health in the Free State, Mondli Mvambi, said the doctor’s claim has not yet been resolved.
“The matter, I am told, is still sub judice,” said Mvambi. “The legal team is applying its mind to the judgment.”
The legal battle began after the health department argued that the doctor’s claim was barred by section 35(1) of the Compensation for Occupational Injuries and Diseases Act, which provides that an injury caused by an accident that arose from an employee’s employment can only be compensated in terms of the Act. If upheld, this would have meant the doctor’s damages claim would have to be dealt with by the compensation commissioner, established under the Act.
However, the high court in the Free State found that the doctor’s rape was not an injury that arose during the course of her employment as a registrar at the hospital, and therefore did not fall under the Act.
This interpretation was upheld by the appeal court, which dismissed an appeal by the provincial department of health against the high court decision, with costs.
“I am unable to see how a rape perpetrated by an outsider on a doctor — a paediatrician in training — on duty at a hospital arises out of the doctor’s employment. I cannot conceive of the risk of rape being incidental to such employment,” said appeal court Judge Mahomed Navsa in his judgment.
Navsa wrote that the case dealt with a vulnerable class of citizen and that rape is the scourge of South African society.
“[A ruling to the contrary] would be sending an unacceptable message to employees, especially women, namely that you are precluded from suing your employer for what you assert is a failure to provide reasonable protective measures against rape, because rape directed against women is a risk inherent in employment in South Africa,” ruled Navsa. “This cannot be what our Constitution will countenance.”
Yet the safety of staff at Pelonomi remains a pressing issue, according to Dr Annelie van der Vyver, the head of the paediatric department at the hospital.
Asked whether security has improved since the doctor was raped while working on night shift four years ago, she said there have been some improvements.
“We don’t think it is yet at the standard where we would like it to be, because many of the things that they promised are not really in place,” said Van der Vyver.
“You know, the perimeter fence at the hospital is not very secure. It has got holes in it in places, so it would not be very difficult for people to enter the premises. We do not have enough security at the entrances into the hospital itself. There are still unmanned areas where people can easily enter.”
Van der Vyver said the hospital had installed closed-circuit television cameras after the rape of her colleague, who is believed to have quit the profession. But she said more could still be done to protect staff at the hospital.
“Panic buttons did not materialise,” said Van der Vyver. “They said it wouldn’t work in the sense that they would be able to pinpoint our whereabouts. The idea was that they would be able to see in the control room where the panic button had gone off and they could go there.”
The spokesperson for Pelonomi, Jabu Mbalula, said several measures had been taken to provide further security for staff, including appointing 148 police reservists to assist at the hospital. The old perimeter fence was replaced with a new security fence designed to prevent intruders from climbing over it. Other measures, such as a new boom gate system, were implemented to control the movement of the public, and surveillance cameras were installed.
“Two-way radios are used by security officials to communicate with each other, and telephones are placed in different wards that the staff members can use to call security,” said Mbalula.
“An intercom system is also placed in all wards to assist with communication. All staff members were given the extension number of the security control room to call if they need to be escorted around the hospital in the evenings.”
Employers that fail to take reasonable measures to protect their employees from harm while on duty will not escape liability, according to Johan Botes, the director of employment practice at Cliffe Dekker Hofmeyr.
The appeal court judgment sent a strong signal to female employees that employers will be held liable for negligent action in cases where bosses failed to take reasonable measures to protect their employees from harm while on duty, he said.
“The [Supreme Court of Appeal] considered the injury suffered by the employee. It stated that, for the MEC’s plea to succeed, the injury [rape] must bear relation to her employment,” said Botes.
“The court held that the risk of rape is not incidental to employment. It held that limiting the employee’s right to seek redress from her employer would not be in the interest of employees.”
Negligent employers could be held liable, he said.
“Failure to repair security fencing, not replacing broken light bulbs or otherwise ensuring walkways are lit, or neglecting to implement proper access control to a workplace, could see more employees relying on their common law rights to institute action against their employers where they suffer damage attributable to the employer’s negligence,” Botes said.