The Criminalisation of HIV Transmissions in South Africa

Abstract

The HIV/AIDS pandemic sent shock waves through the world when it first appeared in around 1981. Globally, jurisdictions conceived different measures and mechanisms aimed at curbing both the spread of the virus and the premature deaths associated with the virus. The international community’s work has focused its attention on advocating for those living with the virus, rather than on giving guidance and binding principles to states on how best to approach the risks associated with the virus. In the absence of proper guidance from the international community, some countries have resorted to creating HIV-specific legislation aimed at punishing those who maliciously contribute to the spread of the virus. In other countries that shun the creation of such laws, the approach has been to rely on existing criminal sanctions to punish malicious and intentional transmission of HIV. South Africa has predominantly opted to adopt the latter approach. The article analyses and explores the approach adopted by South Africa, using both common-law and legislative measures to sanction the intentional transmission of HIV where the perpetrator knew they were HIV positive. The article further analyses and critically discusses how courts have interpreted existing laws to hold accountable those who knowingly transmit the virus.