‘Never before have a single set of facts opened up so many viable causes of action’ – Advocate Thabani Mpofu
Source: Mpilo Hospital faces legal storm over babies swapped 18 years ago – Zimbabwe News Now
BULAWAYO – The shocking discovery that two babies were switched at birth at Mpilo Central Hospital in Bulawayo 18 years ago has opened the door to potentially landmark legal battles, with top lawyer Advocate Thabani Mpofu saying the families and children involved could pursue multiple claims against the hospital.
As revealed by ZimLive this week, two families — one from Bulawayo and another from Shurugwi — recently learned through DNA tests that their daughters, born on May 13, 2007, were mistakenly exchanged at birth.
The truth emerged after a Bulawayo man, suspicious that his youngest daughter did not resemble her siblings, secretly commissioned a DNA test that revealed she was not his biological child.
His wife, adamant she had never been unfaithful, launched her own investigation. Only two girls had been born at Mpilo on the day she gave birth, and her dogged enquiries helped her eventually trace the other mother through social media.
Further DNA tests confirmed the unthinkable: their daughters had been swapped at Mpilo Hospital, which later admitted negligence, citing staff shortages and system failures during the 2007 economic crisis.The mix-up has devastated both families, who are now grappling with deep emotional turmoil, cultural differences and questions of identity.
The “father” of the child raised in Shurugwi died without knowing the truth. The second family lives in Bulawayo.
Lawyers have since been engaged to explore possible lawsuits against the hospital, the biggest referral health centre in south-western Zimbabwe.
“Never before have a single set of facts opened up so many viable causes of action,” Advocate Thabani Mpofu told ZimLive in an exclusive interview.
According to him, both sets of parents can sue Mpilo Hospital for negligence that deprived them of “the comfort and integrity of family life.”
“The children themselves can bring claims for the loss of familial security, for psychological injury and for the profound disruption to their personal development,” he said.
“If one of the children was raised in harmful or unsuitable conditions they can also claim damages for the injury caused by that exposure. Equally, there are likely claims flowing from being compelled to live under false identities and to adopt imposed cultural and linguistic practices. These claims touch on dignity, identity and constitutional rights.”
Mpofu said such suits would be groundbreaking, noting that while precedent is limited, Zimbabwean courts could adapt general delictual principles to accommodate new forms of harm.
“General delictual principles [misdeed or offense] can be adapted to support novel causes of action, and constitutional remedies may supplement common-law claims. The law, after all, is a living instrument and must evolve to meet ever-changing social needs.”
The main challenge, Mpofu cautioned, would be proving and quantifying damages.
“Roman-Dutch jurisprudence has traditionally been conservative when awarding non-pecuniary damages, and quantification in these circumstances will be difficult,” he opined.
“That said, the law does not consign injured parties to mere conjecture. Courts have discretion to make principled, impression-based awards where necessary to vindicate rights and compensate real harm.”
He said remedies could extend beyond compensation to include measures that vindicate dignity and deter institutional negligence.
“I cannot overstate the havoc such negligence wreaks on young lives and on the family unit,” he added. “A measured but forceful judicial response, one that recognises the scale of the wrong and sets a clear precedent, is essential.”
The baby-swap revelation comes as Mpilo Central Hospital battles to repair its image following a string of scandals — including the admission of nursing students with fake O’ Level certificates and the exposure of a bogus doctor who treated patients and stole from them.
Mpilo Hospital chief medical officer Dr Narcisius Dzvanga has repeatedly dodged our questions. One of the questions was whether the hospital had changed processes on the handling of newborn babies, and if he can guarantee families that children born at Mpilo are truly theirs.
On Wednesday, Dr Dvanga said he would respond “during working hours any day midweek.” The enquiry had been sent during working hours, and in midweek.
On Thursday, Dr Dzvanga – appointed to the job in December 2022 after a stint at the United Bulawayo Hospitals – said he had “no idea on the timeline,” adding: “We have to retrieve the records first.”
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