A TALE OF ATTEMPTED MURDER AND HIV … S v Nyalungu 2005 JOL 13254 (T) “

Abstract

The South African Law Commission (as it was then – hereinafter “SALC”) was commissioned to investigate various aspects of the law as it related to HIV/AIDS. In its 5th and final report (Project 85, 5th Interim Report on Aspects of the Law Relating to AIDS – The Need For A Statutory Offence Aimed At Harmful HIV-Related Behaviour, April 2001 – hereinafter “SALC 5th report”), it dealt with “harmful (ie unacceptable) sexual behaviour by a person with HIV or AIDS that could transmit HIV or expose others to HIV, current measures available to address such behaviour and whether there is a need for statutory intervention” (viii of the executive summary of the report). This note considers the SALC’s recommendations in this regard and the reality that there have been no reported cases of successful prosecution under the common-law crimes for the wilful transmission of HIV, but that the case in point shows a willingness on the part of the courts to accept that such behaviour is dire and will be punished albeit under the guise of some “lesser” offence. Whether the decision is S v Nyalungu ([2005] JOL 13254 (T) (unreported)) has/will made/make it a less daunting task to prosecute
crimes involving allegations of the wilful transmission of HIV/AIDS is yet to be seen.