LME3701 Assignment 2 Semester 1 2022

1. INTRODUCTION Murder can be defined as the unlawful and intentional causing of the death of another human being.1 Does this definition differ in situations where the perpetrator knows that he or she is HIV positive and despite this knowledge willingly and intentionally engages into consensus sexual intercourse with the victim? This is one of the issues that will be covered by this paper. Specifically, this research focuses specifically on the constitutional right of the victim of HIV transmission through consensus sexual intercourse. I look at the South African and Zimbabwean Constitution and identify the right that are infringed, in this regard, and make a comparison. To strengthen this paper, I investigate the Constitutional rights of the victim that may be at stake, namely, the right to life. More specifically, I will investigate how the law deals with intentional transmission of HIV, looking at both, the South African law, and the Zimbabwean law. Furthermore, I will discuss how this is a crime and also argue the invalidity of the consent. Moreover, it is important to determine how the court go about acquiring evidence proving in proving its case against the accused, in doing so, I must investigate the appropriate sentence if the accused found guilty and lastly, investigate how the victim is protected by law in cases of HIV transmission. 1. PROBLEM STATEMENT The purpose of this research is to critically investigate the legal position both in South African and Zimbabwean law in cases where a victim is intentionally transmitted with HIV through consensus sextual intercourse and to investigate the constitutional rights of the victim in both South African and Zimbabwean law. This research will include aspects that incorporate the following: An investigation how the law deals with intentional HIV transmission? Is it a crime? Even if there was consent? Is HIV testing of the accused in such a case compulsory? Does the offender get a harsher sentence if found guilty? How is the victim protected? Is the victim provided with any form of treatment? 1 Cynman CR Criminal law 6th ed (LexisNexis 2014) 437. 6 | P a g e 2. HYPOTHESIS People are sexually transmitted with HIV almost every day without their knowledge and most of all without acknowledging that a crime has been committed against them. In this regard, Synman submit that “If X, who knows that he is HIV-positive, rapes a woman, Y, in the knowledge that by so doing he will transfer the deadly virus to Y, he commits attempted murder, if his act becomes known while Y is still alive. If his act becomes known after Y has already died and it is clear that the deadly virus transferred to Y by X was the cause of death, he may be convicted of murder”. In S v Nyalungu2 , X was convicted of rape and attempted murder on the basis that, at the time of the rape, he was aware of the fact that he was HIV-positive and did not take any protective measures. The court held that the principles of our common law were wide enough to cover a situation where a virus was intentionally transferred to another person.3 In addition, a Zimbabwean woman was found guilty in 2012 of intentionally infecting her husband with HIV.4 In South Africa, a court convicted Lovers Phiri of attempted murder for having unprotected sex with his former girlfriend without disclosing to her his HIV status when he knew he was already HIV-positive.5 In light of the above evidence, I consider this to be the solution to the problem this paper seeks to investigate, namely, it is submitted that a perpetrator who intentionally transmit HIV to their partner commits a crime of attempted murder and murder and will face criminal prosecution and if found guilty, a jail time for either attempted murder or murder. 3. POINTS OF DEPARTURE AND ASSUMPTIONS The point of departure that will be followed for the purpose of this paper is a comparative one. This means that this paper will compare the legal position of South African law and Zimbabwean law in respect of cases where a partner is transmitted by his or her partner with HIV through consensus sexual intercourse. The focus of the investigation will remain in the area of public, constitutional and international law under fundamental rights discipline. Moreover, I will not focus on cases where a specific 2 2013 2 SACR 99 (T). 3 General Principles of criminal law study guide p 230 – 231. 4 S v Mpofu & Anor (CCZ 5 of 2016, Constitutional Application CCZ 8 of 2013) [2016] ZWCC 5 (15 June 2016). 5 Phiri v S 2013 ZAGPPHC 279 (8 August 2013). 7 | P a g e gender is a victim. Meaning that I will not favour a cert