JOHANNESBURG - The case of a Pretoria man who was accused of intentionally infecting his 38-year-old girlfriend with HIV has sparked conversation.
Not just on reactions, but the legal consequences of knowingly exposing someone to the virus.
The 47-year-old man, who is currently in custody, faces an attempted murder charge.
It is alleged that the man had intentionally infected her because he did not want her to be with anyone else.
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While the court has not yet determined his guilt or innocence, the allegations have already raised questions about how the South African law treats cases where a person knowingly infects another with HIV.
Ayanda Gwabeni of Ayanda Gwabeni and Partners said the law recognises HIV as a chronic infection that presently has no cure and is likely to eventually lead to the death of a person or even reduce that person's lifespan, even if by an uncertain margin.
As such, he said, intentionally infecting a person with HIV can be legally found to constitute the necessary intention to murder.
“This is no different from a person who poisons another person while knowing that the victim can or probably will die from that poison, either now or eventually in the distant future. The difference here is just the type and the method of tool used to cause the possibility of death; the result is otherwise the same.”
Gwabeni said the law acknowledges two types of intention: Direct and indirect.
Indirect Intention applies to a person who knows they are HIV positive, foresees the possibility of infecting the other with a chronic, but does not take preventative measures.
While direct intention is aware of their HIV status as positive, risks associated with their act and has the intention to infect the person.
Gwabeni warned that the sanctity of human life is not a game in courts and any attempt to end or compromise it is an extremely serious offence which carries significant consequences, such as direct imprisonment.
“It is a criminal offence to intentionally expose a person to the HIV infection. Responsibility is not an option but a must in order not to find yourself languishing in prison because of your moment of madness," he said.
Gwabeni pointed to the case of Mphikeleli Lovers Phiri, who was convicted of attempted murder and sentenced to 6 years’ imprisonment.
The charge stems from having had unprotected sex with the complainant while knowing that he was HIV-positive.
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He said six years could be in line for the suspect; however, he said, with each case, the gravity of the offences is considered during sentencing.
In the same breath, Gwabeni acknowledged the fact that “HIV is no longer the 'certain death' type of chronic infection it was many years ago, and as such, that could be a factor that will work towards reducing the gravity of the offence."
Even so, he believes six years' direct imprisonment remains.
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Beyond the courtroom, Gwabeni believes the case carries a message about responsibility.
He said people who know they are HIV-positive should disclose their status to sexual partners before engaging in sexual activity so that the participant accepts and takes the risk voluntarily,
“In law, 'he who consents to injury cannot be injured', this will then be the applicable principle in this matter. If you do not disclose while knowing, you could be found wanting on the question of indirect intention if a charge of attempted murder eventually comes. I add, however, that this is also contingent on the finding of conclusive evidence that you knew your HIV status.