South Africa

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Africa: Moving towards revolutionising approaches to HIV criminalisation

29 Jun 2017
“We have all agreed with the Sustainable Development Goal of ending HIV and Tuberculosis by 2030. We cannot get there while we are arresting the same people we are supposed to ensure are accessing treatment and living positively,” said Dr … More

Video and written reports for Beyond Blame: Challenging HIV Criminalisation at AIDS 2016 now available

08 Sep 2016
On 17 July 2016, approximately 150 advocates, activists, researchers, and community leaders met in Durban, South Africa, for Beyond Blame: Challenging HIV Criminalisation – a full-day pre-conference meeting preceding the 21st International AIDS Conference (AIDS 2016) to discuss progress on … More

HIV criminalisation firmly on the agenda at AIDS 2016

15 Jul 2016
For those of you in Durban for AIDS 2016 this week and next, make sure you don’t miss all the amazing HIV criminalisation events taking place. Download and print this 2-pager covering all the HIV criminalisation highlights (including posters and … More

Switzerland: New handbook for parliamentarians on effective HIV laws includes case study and interview with Green MP Alec von Graffenried

04 Feb 2014
A new publication from the Inter-Parliamentary Union (IPU) and United Nations Development Programme (UNDP), written by Veronica Oakeshott, is an excellent new resource to help inform advocacy efforts to remove punitive laws and policies that impede the HIV response. Aimed … More

African HIV criminalisation achievements and challenges highlighted at ICASA 2013

11 Dec 2013
The African continent has more countries with overly broad and vague HIV-specific laws relating to HIV non-disclosure, exposure and/or transmission than any other global region, nearly all of which have been enacted in the past decade. Although North America is … More

Legal and policy alternatives to HIV criminalisation: community-level and societal approaches

04 Nov 2012
by Edwin J Bernard Legislators in Mauritius decided not to criminalize exposure to HIV or even HIV transmission. Legislators realized that legislation criminalising HIV exposure and/or transmission would not be able to withstand a constitutional challenge, because of the difficulties … More

South Africa: Opposition leader Helen Zille says HIV exposure is ‘attempted murder’, cites Nadja Benaissa case as example

13 Sep 2010
South Africa’s leader of the Democratic Alliance opposition party, Western Cape Premier Helen Zille has said that HIV-positive people who knowingly have unprotected sex without disclosing their status, should be charged with attempted murder. She also cited the recent case … More

South Africa: HIV-positive father accused of attempted murder for raping son

15 Feb 2008
An HIV-positive father is on trial in the South African capital, Pretoria, for the rape and attempted murder of his ten year-old son, according to a report from the South African Press Agency. The charge sheet alleges the father had … More

South Africa: New rape laws mandate HIV testing for alleged offender

08 Jan 2008
From March South Africa’s new Sexual Offenses Amendment Act will allow victims of rape to apply for a court order to force their alleged attacker to take an HIV (antibody?) test. “The bill was approved by parliament before it went … More

Last reviewed 01 June 2017

Specific laws

Specific law enacted No

Specific law criminalising HIV non disclosure, exposure, or transmission: No

Prosecuted using non-HIV specific laws: Yes

Prosecuted using both specific and non specific laws: No

Is non-disclosure actionable: No

Is exposure actionable: No

Is transmission actionable: No

Prosecutions

Number of prosecutions 1

Convictions

Number of convictions 1

Laws

Applicable laws

There is no specific law on HIV transmission.

However, there is a criminal law for sentencing of sexual offenders: Sexual Offences Amendment Act, 2007.

Applicable key wording

Services for victims relating to Post Exposure Prophylaxis and compulsory HIV testing of alleged sex offenders
28. (1) If a victim has been exposed to the risk of being infected with HIV as the result of a sexual offence having been committed against him or her, he or she may—
(a) subject to subsection

(2)(i) receive PEP for HIV infection, at a public health establishment designated from time to time by the cabinet member responsible for health by notice in the Gazette for that purpose under section 29, at State expense and in accordance with the State's prevailing treatment norms and protocols;  (………..
(b) subject to section 30, apply to a magistrate for an order that the alleged offender be tested for HIV, at State expense.

Part 2: Application for compulsory HIV testing of alleged sex offender by victim
Application by victim or interested person for HIV testing of alleged sex offender
30. (I) (a) Within 90 days after the alleged commission of a sexual offence any victim or any interested person on behalf of a victim, may apply to a magistrate, in the prescribed form, for an order that—
(i) the alleged offender be tested for HIV and that the results thereof be disclosed to the victim or interested person, as the case may be, and to the alleged offender; or

Use of results of HIV tests
34. The results of an HIV test, performed in terms of an order contemplated in sections 31(3) and 32(3), may only be used in the following circumstances:
(a) to inform a victim or an interested person whether or not the alleged offender in the case in question is infected with HIV with the view to
(i) reducing secondary trauma and empowering the victim to make informed medical, lifestyle and other personal decisions; or
(ii) using the test results as evidence in any ensuing civil proceedings as a result of the sexual offence in question; or
(b) to enable an investigating officer to gather information with the view to using it as evidence in criminal proceedings.

Discussion

From the information received from the AIDS Legal Network, it appears that exposing another person to or infecting another person, per se, is not a crime.  However, there is a provision where sexual offenders can be compulsorily tested for HIV; where HIV is transmitted in the course of a sexual offence this can be used in sentencing proceedings.

From the information received, it appears that there are a lot of human rights and women’s organisations that have advocated, ensuring that criminalisation of HIV transmission does not become part of the legal frame work.

As part of the legislative reform processes pertaining to sexual offences legislation (1999 – 2007), the South African Law Reform Commission and one of the draft bills, included a clause criminalising ‘wilful HIV transmission’. However, due to advocacy efforts and active engagement and participation by various stakeholders in the legislative reform processes, this clause was subsequently removed from the draft legislation.

In order to provide specific guidance to Members of Parliament, Ministers, Ministries of Health/HIV of SADC countries on the complex process of HIV legisla­tion, the SADC Parliamentary Forum, a consultative and advisory intergovernmental organization of national Parliaments in  SADC countries, with the technical assistance of the AIDS and Human Rights Research Unit and the involvement of vari­ous stakeholders and regional civil society groups, has developed a model law on HIV to serve that purpose. The Model Law integrates the protection of human rights as a key element of an effective response to HIV.  The Model Law has no provisions allowing criminalisation.

Further reading

Avert Country Page for South Africa
Criminalisation blog for South Africa
Several newspapers discussed the risks of criminalising HIV transmission.

Cases

Overview

14 Aug 2013. First-ever successful prosecution for ‘HIV exposure’ upheld as attempted murder by Pretoria High Court.

Pretoria – An HIV-positive Aids counsellor who was convicted of attempted murder for having unprotected sex with his unsuspecting girlfriend has lost his appeal in the High Court in Pretoria. Judge Tati Makgoka and Acting Judge William Baloyi dismissed the appeal of Lovers Phiri, 35, against his conviction on a charge of attempted murder and the six-year jail sentence imposed on him by a Piet Retief magistrate. Source: http://www.hivjustice.net/storify/south-africa-first-ever-successful-prosecution-for-hiv-exposure-upheld-as-attempted-murder-by-pretoria-high-court/#sthash.zr41PGhc.dpuf

Last reviewed 01 June 2017

Last reviewed 01 June 2017

Last reviewed 01 June 2017