THE Constitutional Court has dismissed two people’s applications that
were challenging their conviction of wilfully infecting their partners
Mr Pitty Mpofu and Mrs Samukeliso Mlilo approached the highest court of the land seeking to overturn their conviction arguing that Section 79 of the Constitution violated their right to protection of the law as provided in Section 18. The two face up to 20 years imprisonment for knowingly infecting their partners with HIV.
In her judgment, Justice Vernanda Ziyambi dismissed the duo’s application with costs. She then ruled that the two’s rights to protection of the law had not been infringed. “I conclude that the rights of the applicants, enshrined in Section 18 of the former Constitution, to protection of the law, has not been infringed by Section 79 of the Code.
“At the outset it must be noted that the right afforded by Section 23 is not a right to be discriminated against on any basis and discrimination on grounds of HIV or other status is not listed therein as a constitutionally enshrined right.
“In this case, the court had to determine whether the remand and prosecution of the accused on the criminal charges under Section 79 of the Code is a violation of the applicants’ fundamental right to personal liberty and the protection of the law.
“It found that Section 79 of the Code was clear and straight forward and the use of the words ‘real risk or possibility’ did not open the section to an unacceptably wide interpretation.
“Section 79, it was submitted, did not criminalise sexual intercourse by a person infected with HIV but was aimed at the conduct of persons who, knowing they are infected with the HIV virus, deliberately or recklessly spread the virus to innocent partners.
“It might be mentioned here that constitutional rights and freedoms are not absolute. They have boundaries set by the rights of others and by important social concerns such as public order, safety, health and democratic values.”
“I conclude that the right of the applicants, enshrined in Section 18 of the former constitution to protection of the law has not been infringed by Section 79 of the Code,” said Justice Ziyambi.
In his application, Mr Mpofu had argued that Section 79 created a danger of false incrimination because it was not certain who was first infected by the virus. It was also his argument that Section 79 “was too wide and criminalised sexual intercourse by a person infected with HIV”.