LEGAL RECOURSE FOR INTENTIONAL TRANSMISSION OF HIV THROUGH SEX

By

XOLANI VINCENT MAHLANGU

(57830932)

Submitted in partial fulfilment of the requirements for the degree

LLB

In the

SCHOOL OF LAW

UNIVERSITY OF SOUTH AFRICA

SUPERVISOR: PROFESSOR L PIENAAR

(ASSIGNMENT NUMBER 03 / 03)

2022
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Table of Contents

1. Introduction……………………………………………………………………………….3

2. Problem statement………………………………………………………………………4

3. Hypothesis………………………………………………………………………………. 4

4. Points of departure and assumptions………………………………………………... 5

5. Conceptualization of central research themes……………………………………….6

6. Proposed chapter outlay………………………………………………………………. 7

7. Projected time scale……………………….…………………………………………… 8

8. Description of research method.………………………………………...................... 8

9. Conclusion………………….…………………………………………………………… 9

10. Bibliography……………………….……………………………………………………11

11. Academic honesty declaration…………………………………………………….... 13

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1. Introduction

This research paper is critical in educating and raising awareness among the general public
and those interested in our country's legal issues. The primary goal is to examine and report
on the role and significance of the law in the spread of HIV.

A woman was infected with HIV through consensual sexual intercourse with her partner.
Her partner. This is a common problem, people who are HIV positive get into relationships,
not ready to disclose their HIV status and that put the other party at risk. In my view, there
should be a way to protect the victims and to stop this from happening.

This is the comparative research in response to this matter. The aim of this research is to
investigate how the South African law deals with intentional HIV transmission. We need
establish whether it’s a crime even though there was a consent, Is HIV testing of the
accused compulsory, does the accused get a harsher sentence if found guilty. How is the
victim protected and whether there is any form of treatment for the victim? The research
will also be looking at the current legal position in our country and comparing it to how other
African countries deal with it legally., more closely, a country like Zimbabwe.

HIV is a daily reality for South Africans, it is important to emphasize that legal practitioners
can and must play an active part in the battle against HIV and AIDS, and to provide them
with the necessary knowledge.1 Although public opinion and the impact of HIV in our
communities are important issues to explore, they will be excluded from this study. I'll also
leave out any demographics relating to or concerning the HIV transmission.

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 2. Problem statement

The purpose of this research is to investigate whether the intentional HIV transmission
through consensual sex constitute a criminal offence in South Africa law, secondly, how
the current law system deals with it compared to the Zimbabwean current laws on the same
issue and to explore the criminal law aspects of it and the criminal law measures against
the spread of the disease.
The primary goal is to examine and report on the role and significance of the law in the
spread of HIV.

3. Hypothesis

This conduct is covered and punishable under the current existing South African common
law crimes and there is a specific legislation in Zimbabwe that specifically deals with this
conduct and to assist in combating the spread of HIV and or punish the offenders who
deliberately infect others with the disease.

Zimbabwe was the first African country to enact an HIV-specific criminal statute, The
Sexual Offences Act of 2001. The Act criminalised anyone diagnosed HIV-positive who
intentionally infect another person with HIV”. After more than two decades, Zimbabwe has
completely repealed its HIV-specific criminal statute.

1
Motsepe “HIV and The Law in South Africa” Motsepe A HIV and The Law in South Africa (LexisNexis
South Africa 2016).
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4. Points of departure and assumptions

My point of departure is to conduct a comparatively research and find out what are the
available legal recourses. The aim is to investigate if there is help and rehabilitation
options for the victims and the sanctions against perpetrators when it comes to intentional
transmission of HIV. In conducting this research, we will be looking at constitutional law,
case law, law reform commission reports and writings by scholars in South Africa and
Zimbabwe.

In doing this research, I will not be looking into public opinions and the economic impact
that the spread of the disease has in our communities, although it is a serious problem
to address, it will be excluded in this research. I will also exclude any demographics
related to and about the transmission of HIV. I will be focusing on the constitutionality
angle of approach.

There are countries that are stricter when it comes to crimes that are perpetrated to
human, one such country is Zimbabwe, as a country that had many people infected by
this disease and were forced to take all reasonable measures to prevent transmission
of the disease to others. we will be looking into their laws on the same subject in contrast
with our own to see how farfetched or not our laws are.

Legal experts and ordinary people have agreed that anyone who transmits HIV to a
sexual partner intentionally or knowingly should face legal repercussions. Policy
considerations have driven the employment of existing criminal law procedures in court
actions involving the intentional or negligent transmission of HIV to sexual partners in
South Africa. South Africa, unlike most other African countries, has chosen not to develop
a new set of criminal offenses to penalize HIV transmission in this context.2

2
Annelize Nienaber, ‘The 'intentional' sexual transmission of HIV: a note of caution in light of Phiri v S:
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5. Conceptualisation of central research themes

HIV (HUMAN IMMUNODEFICIENCY VIRUS)

- is a virus that attacks the body’s immune system.

INTENTIONAL TRANSMISSION OF HIV

- When a person living with HIV knows about his/her status, acts with the intention

to transmit HIV.

SEX

- sexual activity or sexual intercourse

LEGAL RECOURSE

- A legal recourse is an action that can be taken by an individual or a corporation to

attempt to remedy a legal difficulty.3

case note’ (2014) Vol. 29, No. 2 Southern African Public Law.

3
West's Encyclopedia of American Law, edition 2. (2008). Retrieved April 13, 2022, from https://legal-
dictionary.thefreedictionary.com/sanctions.

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 6. Chapter outlay

Chapter title Chapter content

Research parameters and General conceptualisation of research
introduction problem and methodology. A reflection and
overview of the research problem.

Body and purpose of this Lays down and answer why the research has
research been undertaken and what it seeks to
achieve.
Conceptualisation of central Brief definitions of central research terms and
research terms concepts we intend to use in the research,
with reference to authority.
The South African This chapter provides the law and analysis of
perspective the legal position in South Africa regarding
intentional transmission of HIV through
consensual sex
Comparative perspective This chapter presents the law concerning
comparative jurisdiction -similarities and
differences between South Africa and
Zimbabwe law with regards to the crime of
intentional transmission of HIV through
consensual sex.
Research layout Structure, layout, and explanation of the
processes of the research

Conclusions and summarizes the main argument, content, and

Recommendations the outcomes of the research with evidence
and recommendations.

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7. Projected time scale

Assignment Expected date of submission

Draft research proposal Assignment 02 16 April 2022

Receive draft proposal feedback with 25 April 2022

comments

Final research proposal Assignment 03 17 June 2022

(portfolio exam)

Receive Final research proposal feedback 21 July 2022

with comments

8. Description of research method

This is qualitative research. I will be approaching this research using the comparative
research method. I will be looking at the current legal position of South Africa law and
comparing it to the current legal position of Zimbabwean laws, by consulting the
constitution, legislation, case law, law reform commission reports and writings by
scholars. In obtaining this information, I will largely rely on online documentary sources
from the internet like SAFLII and Unisa online Library.

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My macro focus will be on the work and suggestions of South African Law commission
report and decided cases, to see the effectiveness of the existing common law crimes in
securing the arrest or punishment against the perpetrators.4

9. Conclusion

The aim of the research is to investigate whether the intentional HIV transmission through
consensual sex, whether it’s a criminal offence and the current legal position in South
Africa and comparing it to how Zimbabwean laws deal with it and what are the available
legal recourses, help and rehabilitation options for the victims and the sanctions for
perpetrators in each country.

In the attempt to stop people from deliberately spreading the disease, one of the
approaches taken by both countries (and other countries) was to look at the legal aspects
of it. They understood that criminal law has a role to play in protecting the community and
punishing those who transgress the law. Both countries dealt with it differently, Zimbabwe
felt the need to enact a new statutory offence criminalizing the act,5 while South African
law experts are of the opinion that the state would be able to institute criminal
prosecutions for HIV-related behaviour under the existing common law crimes.6

The South African Law Commission was founded by the South African Law Commission
Act, 1973 (Act 19 of 1973), among other things, to investigate the feasibility of using the
criminal law to stop the disease from spreading. They concluded that the criminal law is

4
AIDS Law commission ‘The Need for a Statutory Offence Aimed at Harmful HIV-Related Behaviour.’

5
Miriam Tose Majome “Deliberate transmission of HIV: The pros & cons” https://bulawayo24.com/index-id-
opinion-sc-national-byo-159456.html (Date of use: 06 March 2022).

6
Aspects of Law Relating to AIDS Law commission “The Need for a Statutory Offence Aimed at Harmful
HIV-Related Behaviour” 1999 Pretoria Aspects of The Law Relating to AIDS 1 – 12.
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not the most effective means of combating HIV transmission, and they were thus
opposed to the introduction of a statutory offence directed specifically at HIV-related
hazardous behavior. The main reason provided was that unlawful behaviour by people
living with HIV is still punishable under current common law crimes.7

There are decided case that suggest that we have a successful prosecution using the
current common criminal law. General criminal laws were applied in the case of Lovers
Phiri8, who was convicted of attempted murder for having unprotected sex with his former
girlfriend without informing her of his HIV status. The court believed that it was not
necessary to prove that HIV was indeed transmitted from Phiri to his ex-girlfriend for him
to be found guilty. Also, the South African Constitution (Act 108 of 1996) contains a
comprehensive list of fundamental human rights that protect HIV/AIDS patients and other
vulnerable individuals.9

There are also cases that have been resolved unsatisfactory in the eyes of the law.
“Venter v Nel is considered ‘bad’ law because the claimant’s action was unopposed and
judgment by default was granted.”10

In July 2019, Zimbabwe’s government moved to repeal section 79 of the Criminal Law
(Codification and Reform) Act through the newly gazetted Marriages Bill. The move
followed public statements by the Justice, Legal and Parliamentary Affairs Minister that
global thinking suggested such laws stigmatised people living with HIV and AIDS.11

7
AIDS Law commission ‘The Need for a Statutory Offence Aimed at Harmful HIV- Related Behaviour’.

8
Phiri and Another v S (A240/ 2017) [2017] ZAGPPHC 1261 (15 December 2017).

9
The Constitution of the Republic of South Africa Act 108 of 1996.

10
Venter v Nel and Others (9257/2011) [2011] ZAWCHC 540 (19 September 2011).

11
Section 79 of the Criminal Law (Codification and Reform) Act (ZWE).

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11. Bibliography

Articles

AIDS Law commission ‘The Need for a Statutory Offence’.

Aspects of Law Relating to AIDS Law commission ‘The Need for a Statutory
Offence Aimed at Harmful HIV-Related Behaviour’ 1999 Pretoria Aspects of The Law
Relating to AIDS 1 – 12.

Books

Motsepe ‘HIV and The Law in South Africa’

Motsepe ‘HIV and The Law in South Africa’ Motsepe A HIV and The Law in South
Africa (LexisNexis South Africa 2016).

Case law

- Venter v Nel and Others (9257/2011) [2011] ZAWCHC 540 (19 September 2011).

- Phiri and Another v S (A240/ 2017) [2017] ZAGPPHC 1261 (15 December 2017).

The Constitution

The Constitution of the Republic of South Africa Act 108 of 1996.

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Internet

Majome ‘Deliberate transmission of HIV: The pros & cons’.

Miriam Tose Majome, ‘Deliberate transmission of HIV: The pros & cons’
https://bulawayo24.com/index-id-opinion-sc-national-byo-159456.html (Date of use: 06
March 2022).

Journal

Annelize Nienaber, ‘The 'intentional' sexual transmission of HIV: a note of caution in light
of Phiri v S: case note’ [2014] Vol. 29, No. 2 Southern African Public Law.

Nienaber, ‘a note of caution’ [2014] Vol. 29, No. 2 SAPL.

Law Commission reports

SALC ‘The Need for a Statutory Offence Aimed at Harmful HIV-Related Behaviour’
South African Law commission, discussion paper 80 (project 85).

SALC ‘The Need for a Statutory Offence Aimed at Harmful HIV-Related Behaviour’.

The Legislation

- South African Law Commission Act 19 of 1973.

- Health Act 63 of 1977.28

- Criminal Procedure Act 51 of 1977.

- Section 79 of the Criminal Law (Codification and Reform) Act (ZWE).

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Regional documents

Africa RIB ‘Criminal Law and HIV’

Africa Regional Issue Brief ‘Criminal Law and HIV’ (August 2011) Pretoria, South Africa.

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ACADEMIC HONESTY DECLARATION FOR LME3701 PORTFOLIO EXAM

1. I understand what academic dishonesty entails and am aware of Unisa’s policies

in this regard.
2. I declare that this assignment is my own, original work. Where I have consulted
someone else’s work, I acknowledged their work by referring to it in a footnote.
Every contribution to, and quotation in, this assignment from the work or works of
others have been referenced according to the prescribed style.
3. I have not allowed and will not allow anyone to copy any part of my work for
purposes of passing it off as his or her own work.
4. I did not make use of any part of another student’s work in order to submit it as my
own.

XOLANI MAHLANGU
NAME: ______________________________________________________________
SIGNATURE: ________________________________________________________
57830932
STUDENT NUMBER: __________________________________________________
LME3701
MODULE CODE: _____________________________________________________
17 JUNE 2022
DATE: ______________________________________________________________
COMPARATIVE RESEARCH METHOD
RESEARCH THEME SELECTED: ________________________________________
MARK RECEIVED FOR ASSIGNMENT 01: 100%
MARK RECEIVED FOR ASSIGNMENT 02: 51.5%

Type text here

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