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Judgment No eez 5 / 2016\1 Const. Application No CCZ 08/13











i 5 JUN 2016

p ~ , Cw ' 3 7 0, CAUSE\W


:- r ~lt:. ~ ,~\ " / c1' ~L '1~-798 (,.3-~,5

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T Mpofu, for the a ppl icants

E Mavuto, fo r the res p onden t


[1] T h is matte r i s b ro u gh t by way of refe r ra l in ter m s of s 24 (2) of t h e forme r Constit u tion of



Zi mb a b we ("t h e f orm er Co nsti tut i on) w h ich p r ovi d es as fo llows:

" 2 4 E nforc e m e n t o f prote c ti ve pr o vis i on s


(2) I f in any proceedings in t h e Hig h Court or in a n y court subordinate to the Hig h C o urt an y qu es t ion a ris es as t o t he contrave n tion of the D eclaration of Righ ts, the p erso n pr esi d i n g in t h at c ourt may, a n d i f so req u ested by any party

t o th e pro ceedin g s s h a ll, r e fe r t h e qu est ion to t h e S uprem e Cou r t unl ess, i n h i s opinion , the ra i s in g of the questio n is mer e l y f ri vo lous or v e xati o u s".

The q u estio n s refer re d fo r de c ision concern t h e co n stitutio n a l i t y of s 79 of the Criminal Law

( Codif i cati o n and R eform) Ac t , [ Chapte r 9:23 ] ("the Code"). T h e a ppl icants claim that s 79

vio l ate s their r i g ht to p rotec t ion of the l aw as wel l as their r i g h t not to be discriminated

Jud g ment N o eez 5/2016\2

C o ns t. Ap pl ic atio n N o C C Z 08/13



The first applicant is a 42 year old male . On 5 September , 2012 , he was arrested and

subsequently charged with contravening s 79 of the Code , brief l y, "de l iberate transmission of

HIV / AIDS" . It was a l leged that the applicant had deliberately infected his w ife , Gezi w e

Ncube with HIV . On 27 September, 2012 the applicant appeared before the magistrate for a

remand hearing and requested that the matter be referred to the Supreme Court ( formerly the

Court which determined constitutional matters) on the following grounds:

1. Section 79 of the Code with which he is charged is too wide , broad and va gue so as to render the law uncertain thereby infringing his right to protection of the law as set out in s 18 of the Constitution.

2. Section 79 of the Code violates the applicant's fundamental right guaranteed under s 23 of the Constitution, not to be discriminated against on any ba s is (including his HIV / AIDS status).

[3] The second applicant is a woman

aged 34 years . She was customarily m a rri e d to on e

Joseph Marozva during the period 2008 to 2010. It was alleged, and proved at her trial , that

in 2009, she fell pregnant and had to undergo routine HIV testing. Although the result was

positive, she did not disclose this fact to her husband but continued to ha v e unprotected

sexual intercourse with him until he stumbled upon her a ntenatal card which dis c l o sed sh e

was taking medication for HIV / AIDS . She was convicted of contravening s 79 of the Code

and remanded for sentence . At the resumption of the trial on 9 July, 2012, an application w as

made , and granted on 10 July 2012, referring the matter to the Supreme Court on the two

grounds set out in [2] above as we l l as the following additional grounds:


Whether or not the c r iminal ization of consensual sex u al conduct whereby the complainant voluntarily engaged in a sexual encounter with the accused amounts to a v i o l ation of the app l icant's right to protection of the law as ensh rined in s 18 of the Constitution.


Whether or not the remand and prosecution of the accused on the criminal

c h arge under s 7 9 of the Crimina l Code are not, on the facts, a violation o f the

Judgment No eez 5/201613 Ca n s t. Ap p lic a tio n No C CZ 0 8 / 13

applicant' s f und a m e nt a l right to p e rsonal libe r t y and the pr o t ec t io n of th e

l aw.

. . Thes e additional grounds were , ho w e v er , not pursu e d b y Mr M pofu w ho confined h ims el f to

the fir s t t w o questions . Accord i n g l y this jud g ment w i l l de a l w ith the t w o qu est i o n s set o ut i n

[ 2 ] ab o ve.


[4] S e ction 7 9 of the Code:

"79 Deliberate tran s mission of HIV


1) An y per s on w h o


a) kno w in g that he or she is infec ted w ith HIV ; or


(b) r ea l ising th a t there is a real ri s k or pos s ibility th a t h e o r s he is infect e d w ith HIV; intention a lly does anything or p e rmit s th e doin g


of an y thing w hich he or she knows w ill infect, which he or she realis e s in v ol v es a r e al risk

or do es a n y thin g o r p ossi bilit y of

infecting another person wi t h HIV , sha ll be guilt y o f del i ber a t e transmission of HIV , w hether or not he or sh e i s mar ri e d to t h at

oth e r person , and shall be lia ble to imprisonment fo r a p er i o d n o t


x ce e ding t w enty ye a rs .


2) It shal l be a defence to a char g e under

subsection ( 1 ) f o r th e acc u se d to

prove that the o ther - person c oncemed-


knew th a t the accused w as infected with HIV ; a nd


con s ented to the a ct in qu e stion , appr e ciatin g th e n at ur e of HIV and the possibility of becoming infecte d wit h i t " .

S ection 15 of the Code:

"15 Rea li sat i on o f rea l risk or p oss ib i l i t y

(1) Where real i s ation of a real risk or possib i lit y is a n elem e nt o f a n y crime, the test is subjective and consists o f the fol l owing two compon e n t s :

( a)

a comp o nent o f a w ar e n ess , th a t is , w heth e r or no t th e per so n whose conduct is in issue r e alised that there w as a risk o r possibility , other than a remote risk or possibility, th a t ;


i )

his or her conduct consequence; or


gi ve rise to th e r e le va nt

Judgment No eez 5/20161 ~

Canst. Applicatio n No CCZ 0 8/1 3

(ii) the relevant fact or circumstance existed when he or she engaged in the conduct; and

(b) a component of r e c k l essness, that is, whe t her, despite realising the risk or possibili ty referred to in paragraph (a) the person whose conduct is in issue continued to engage in that conduct.

(2) If a crime of which the realisation of a real risk o r possibility is an element is so defined in this Co d e or any other enactment that;

(a) th e words desc rib ing the component of a wareness are omitted, the component of awareness shall be implicit in the word "recklessly" or any derivatives of that word; or ,

(b) the words describing the component of recklessness are omitted ,

the component of recklessness shall be implicit in the expression

" realise a real risk or possibility " expression,

or any derivatives of that

( 3 ) Where, in a p rosecution of a crime of w h ich the realisation of a real risk or possi b i l ity is an e l eme n t, the component of awareness is proved, the component of recklessness shall be inferred from the fact that :

(a) the relevant consequence actually ensued from the conduc t of the accused; or

(b) the relevant fact o r circumstance actually existed w hen the accused engaged in the conduct; as the case may be . "

Section 18 of the former Constituti o n:


"1 8 Pr ov i s io ns to s ecu re p ro t e c t i o n of la w


Subject to the prov i sions of this Constitution, every person is entitled

to the protection of the law

Section 23 of the former Constitution:

"23 Protec ti o n fr o m dis crimi n a ti o n on t h e grou n ds o f ra c e , et c.


Su b ject to the provis i o n s of t h is section -

(a) no law s h all make any provis i o n that IS discriminatory either of itself or in its effect; and

(b) no pe r son shall be treated in a d iscriminatory manner by any p erson acting by virtue of any written law or in the perfor m a n ce of the functions of any public office or any pu b lic a u t h ority.


Judgment No eez 5 /201615 Cans t. Applicatio n No CCZ 08/ 13

For the purposes of subsection (1) , a law shall be regarded as making a

provision that is discriminatory and a person shall be regarded as having been treated in a discriminatory mann er if, as a result of that law or treatment, persons of a particular description by race , tribe,

p l ace of origin, politica l opinions, co l o u r, creed, sex, gender, marital

status or physica l disability are prej u dice d-

(a) by be i ng subjected to a condition, restriction or disabilit y to

w hi ch ot h er persons of another such description are not made subject; or

(b) by the according to persons of another such description of a privilege or advantage which is not accorded to persons of the first - mentioned description ; and the imposition of that condition , restriction or disabil ity or the according of that privil ege or advantage is whol l y or mainly attributable to the description by race, trib e, place of origin, political opinions, colour . creed , sex, gender , marit a l st a tus or

physica l disability

u nder lini n g)


of the persons concerned

" ( My

[5] The questions referred for determination, namely:-

1 . Whether section 79 of the Code with which the applicants are charged is

too wide, broad and vague so as to rende r the l aw uncertain

i n fringing on the i r right to p r otection of the l aw as set out in section 18 of

t h e fo r me r Constitution; and


2. Whether section 79 of t h e criminal Code violates the fundamental right of the applicants , guaranteed under section 23 of the Constitution , not to be discriminated against .

are hereunder dealt with in turn .

1. Infringem e nt of the right to protection of the law s 18


[6] The main attack la u nc h ed b y Mr Mpofu on s 7 9 of the

Code is that the section is framed

in terms so wide as to be vio l ative of the p r otection of the law guarantee . He submitted that

the offence created by t h e l egislature in s 79 was conjectural and vague in that a person who

realizes that there is a risk or possibility that he or she is infected wit h the HIV virus must be

convicted under t h at provisi on. That would incl ude any perso n who h as sexua l intercourse ,

Ju d gment No eez 5/201616 Const. App licat i on N o CCZ 08 / 13

whether protected or otherwise, and any person who has been injected with a needle or has

subjected himself to blood transfusion.

He submitted further that the offence created was 'dangerously wide' in that it speaks of a

real risk or possibility of i nfecting a n other . Scientific research, it was submitted, had shown

that condoms are not 100% effective in protecting again s t the risk of infection. Thus having

sexual i n tercourse w i t h a c on dom i s, s tric t l y s p eaking, irre l evant for the p u rposes of this

p r ov isi on .

I n addition, there is great danger o f fa l se in cr i mination

as it is currently not

possible in this country to determine who it i s that was i n fected first .

[7] The counter argument advanced by the respondent was that the offence created b y s 79

comprises both the common law concepts of actual intention (dolus directus ) and legal

intention (dolus eventualis). The offence was committed by a person who knowing or

believing that he is infected with the HIV virus intentional l y does or permits the doing of an

act which he knows will i nfect another or which he rea lizes involves a real risk of infecting

another . It was submitted t h at s 7 9 was c l ear a n d straig ht forward a n d the use 0 the words

'rea l risk or possibility' d id n ot o p en the sect io n to a n u naccepta bl y wide interpretation as

that phrase is defined in s 15.

Section 79, it was submitted, did not criminalise sexual intercourse by a person infected with

HIV but was aimed at the conduct of persons who, k n owing they are infected with the HIV

virus, deliberately or recklessly spread the vir u s to innocent partners . The section provides for

a defence to an accused person that the sexual partner was, at the time of his participation in

the act of intercourse, aware of h is HIV status and the possibility of being infected therewith .

It was submitted that the ap pli cants' r i ght t o p r otect i on of the law as enshri n e d in s 18 of the

Judgment No eez 5/2016\7

Canst . Application No CCZ 08/13

[8] The right to protection of the law entails that the law be expressed in c lear and preci s e

t erms to enable individuals to conform their conduct to its dictates .

A l aw may n o t be s o

w idely expressed that its boundaries a re a matter of conjecture nor may i t be so vague that the

people affected b y it must g uess at its meaning .

If it does

it will fa il to meet t he t e s t o f

v a l idity. A subject must be ab l e to foresee to a reasonable degree the consequences w hich his

chosen co u rse of co n duct m ig h t entai l .

Kingd o m '<

As it was put in The Sunday Times v The Unit e d

a norm cannot be regarded as a ' l aw ' unless it is formu l ated with suf f icient

precision to enable the citizen to regu l ate h i s conduct:

h e must be able - if need be

with appropriate

ad v ice - to foresee ,

to a degree that is re a sonable

in th e


the consequences


a gi v en

ac t ion

may entail.

Th os e

consequences need not b e foreseeable with absolute certaint y: experience sh ow s this

to be unattain a ble. Again, whi l st certainty is highly desirable , it may bring in its tr a in

excessi v e

circumstances. "

rigidit y

and the law must

be able to keep


w ith cha nging

[9] The right to protection of the law als o includes the right not to be prosecuted under a la w

that is un co n stitutional . Conse qu e n t l y , it is a l ways open to an accu s ed per s on to challen g e

the consti tu tio n a l ity o f leg i s l ation under w h ich he i s charge d , the onus being on him to pro v e

t h e unc o n stitutiona l ity ' .



[10] It might b e mentioned here that constitutiona l r ights and freedoms are not absolute .

They ha v e boundaries set b y the rights of others and by impo r tant soci a l concerns such as

public order , safety, health a n d democratic v a l ues . '

1 ( 1 979-80) 2 EHRR 24 5 at 2 71 (para 49)

2 Zi mb a bw e Town s hipD e v e iop e r s vLou s Sho es 1983



Thus a law may impose cert a in



at 382 - 383A)


No eez 5/2016\8

Canst. Application No CCZ 08/13

limitations on the enjoyment of individual rights for the benefit of the public subject to the

overriding consideration that such a law may not be inconsistent with the constitution. "

[11] The thrust of Mr Mpofu ' s attack on the constitutionality of s 79 of the Code is that it is

expressed in terms too broad and imprecise to provide guidelines for individual conduct . He

took issue in particular with s 79 (1) (b) which penalises a constructive intent to commit the

offence, arguing that at most only an actual intent ought to be required. I cannot agree. As

the respondent submitted, the offence created in s 79 embraces the common law concepts of

actual (dolus directus) and constructive (dolus eventualis) intent . Both the offender who has

an actual intent to infect another and the one who is reckless as to whether or not his actions

will result in the infection of another are caught by s 79. The section is specifically directed

at these two categories of persons and these only. The definition in s 15 of the phrase 'real

risk or possibility' has dispelled any perceived vagueness in that phrase by the inclusion

therein of the components of 'awareness and recklessness' . S79 is in my view formulated in

sufficiently clear terms to enable a subject to foresee the consequences of his actions .


[12] It is to be borne in mind that one is here concerned with a person who is aware that he

(and the word ' he' is meant to include 'she') is infected with the HIV / AIDS virus or has

reason to believe he might be so infected. Public policy would, in my judgment, require of

such a person that he make full disclosure to his intended partner in order to afford that

partner the opportunity to make an informed decision. The fears expressed by Mr Mpofu in

regard to the use of ineffective condoms and blood transfusions

can be allayed by full

disclosure of such fears to the intended partner .

In my view the section, framed as it is ,

affords the protection of the law not only to the accused persons but to all members of the

public - to accused persons who can avail themselves of the defence afforded to them in s 79

4 Section 3 former Constitution of Zimbabwe


N o CCZ 5/2016 \ 9

Co n s t. Applica tion N o CCZ 08/ 1 3

as w ell as to memb e rs of the public w ho are enti t led to be protect ed aga inst the wa nton a nd

r eckless conduct of p e rsons w ho fall foul of th e pro v isions o f the sectio n .

It is well kno w n that infection with the HIV v irus can ha v e fatal consequences p a r tic ul a rl y

w here the infected person is not in receipt of remedial treatment either because h e is n ot

a w are of the fact of his infection or because a lthough a w are of his status, he takes a conscious

decision not to avail himself of such treatment w h ich can only be obtained upon disclosure of

his condition to a care give r . As I perceive i t , t h e applicants' objection to the dis c losure


their status springs from a desire to s a feguard their privacy. That desire must, ho w e v er , be

w eighed against the intended partn e r ' s rights prominent among which is the right t o li f e .


I take t he v iew that s 79 is cast in terms sufficientl y precise and adequate t o pro v id e

g uidance for indi v idu a l conduct .

Taking the t w o examples gi v en b y Mr M p ofu, of th e

' innocent people ' :

the person who has no reason to be l iev e that he or she is in f ected , for

example where infection has, unknowing to him or her , been brought about by an in j ec t i o n

with an infected needle , would not b e convicted

aware n ess and reck l essness wou ld b e


b sent .

under s 79.

The elements of subjecti v e

J Similarly, the person who has reason to

believe that he might be HIV positiv e, would not be l iable to be convicted under s 79 if he

disclosed this belief to his pa r tner so that the latter could make an informed decis io n.


section in m y v ie w poses no danger of con v iction to these persons.

[ 1 4] I conclude that the right of the applicants , ensh r ined in s 18 of the former Constit u ti on ,

to protection of the law has not been infringed by s 79 of the Code.

2 . Wh e th e r section 79 of t he criminal Code violates th e applicant' s fundam e n ta l guarant e ed und e r section 23 of the Con s titution

ri g h t


Judgment N o CCZ 5/2016\10 Canst. Applicat i on No CCZ 08 / 13

At the outset it must be noted that the right afforded by s 23 is not a right not to be

discriminated against on a n y ba s i s . The unde r lined portions of subs (2) of s 23 5 show that


on grounds of HIV / AIDS or other status is not listed therein as a

constitutionally enshrined right .

In that connection

the following observations by

MCNALLY JA i n Kombayi v Registrar General 2001 (2) ZLR 356 (S) 6 are pe r tinent:

"T h ere are two reas on s w h y t h is argument is fa llacious. The first is that s23 of the constit u tion protects t h e in d i v i dua l from d i scr i mination on a number of grounds, but

ack of e du ca ti o n is n o t on e of them. T h e types of d iscrim i nati on that are p r ohibited are discrimination b y " race , tribe, p l ace of origin, po litica l opinions, colour , creed or "



The arg u ment advanced on beha l f of the applicants is that s 79 of the Code infringes their

right protected by s 23 (1) not t o be discriminated against in that it discriminates against those

persons who are HIV positive by imposing on them restrictions which other members of the

community are not subjected to and exerts on them a higher standard of social interaction not

exerted on other citizens. T h e sect i on , so the submission went, negates the ability to conduct

normal human r e l ations i n t h at a person infected with the HIV virus or one exposed to it

would h ave to e du cate every pote n t i a l sexua l partner on the ' bio l ogy of HIV and ensure that

t h ey have f ull y und erstoo d a nd a p preciated the nature

of H I V b ef o re in d u l g i ng' .

It was

submitted that the defence of disc l osure to the intended partner, afforded to persons charged

under s 79 was 'too burdensome' for any human being. It was accordingly submitted that the

limitations imposed on the applicants '

constituti onal rights by s 79 of the Code are not

reasonably justified in a democratic society.

[16] The fallacy of this argument lies in the fact that as stated above the Constitution does

not deal w i th the right c l aimed by the app l icants. Not a ll discrimination i s proscribed by s 23.

What is pr o scrib e d i s discrim i nation on the grounds underlined above . These are: "race,

5 Sup r a at

pa r a [ 4 ]


S ee als o

S v B a n ana 2 000

(l}ZLR 607 ( S ) at 635

Jud g ment N o eez 5/2016 1 11 Ca nst. Ap p lica tio n N o CC Z 0 8 / 13

tribe , place o f ori g in , political opinions , colour , creed , sex , g ender , marit a l statu s or ph ys ical

di s abil i t y". Dis c rimination on the basis of HIV status is not proh i bited b y s 23 . Thu s w hil e

s 79 tar g ets onl y persons infected with or exposed t ~ the mv v irus - w hich

can be re g arded

as discrimin a tor y of those persons -

such discrimination

is not unl awf ul in t h a t i t i s n o t

proscribed b y s 23.

I must accordingly disagree with the submission on beh a l f of the

respondent that s 79 of the Code infringes th e applicants '

ri g ht not to be di s crimin a t ed

a g ainst in term s ofs 23 ( 1 ) of the form e r Constitution. As was observed in the Komba y i and

Banana cases ( s upra) , s 23 ( 2) limits the type of discrimination w hich is proscrib e d b y the

Constitution . This emerges clearl y w h e n th e section is read as a whole.


In terms of s23 ( 5) , w here a law discriminat es on the g r o unds of se x or g ender , the

challen g er bears the burden of sho w ing that " that law or , as the ca s e m ay b e, the thi ng done

under the authority thereof is not reasonably justifiable in a democrat ic society". Thus in t h e

B a nan a case , GUBBA Y CJ remarked as follows:-

" The burden of proof is on the challenger ( ZIMBABWE TO WN SHIP DE V ELOPER S v

LO U S SHOES 1983 (2) ZLR 376 (S) at 382-383A) to prove that the impu g ned en a ctment goes furt h er than is reasonab l y ' justified in a democratic society , and not upon the state to show that it does In effect the court will consider three criteria in determining whether or not the limitation upon the protection is permis si ble in the sense of not being sho w n t o be arb i trar y or excessive. These criteria were identified in Ny amb i rai v N a t ion a l S ocial Se curit y Authorit y and A nor 1995 (2) ZLR 1 (S) at 13 D- F . [The y ] are w hether :

1 . The legislati v e objectiv e w hich the limitation

is designed to p ro mote is


important to justify o v erriding

the f undamen t al



2 .

The measures designed or framed to meet the legislati v e obj e c t i v e are rationa ll y connected to it and are not arbitrar y, unfair or ba s ed on irrational considerations ;

3 . The means used to impair the right or freedom are no more th a n IS necessary to accomplis h t h e o b jec tive."

Judgment No eez 5/20161 n Canst. Appli cation No CCZ 08/13

Both parties ma d e subm issions on this issue t h e app licants a l leging that s79 being such a la w


as not reasonabl y justifiable in a democratic society while the respondents submitte d that it


as and the criteria set out above had been met by s79.

The n at u re of t h e di scr i mina ti o n a llege d b y t h e app l ica n ts r en d e r s s23 (5) i rrelevant to the

determin a tion of the issue at hand . Howe v er, e v en if a consideration o f the ab ov e cr ite r i a w as

necessary , it is my v i ew that , as will appear hereunder , the applicants ha v e f a ile d t o di s charge

t h e o nus on t h em to s ho w tha t t h e said criter i a have not b een satisf i e d .


[18] As correctly submitted by the respondent the objective of the s 79 is to halt or pre v ent

the spread of HI V I A ID S. In v i ew of t h e fatal n atu r e of the disease , t h e objective is not on l y

important but laudable. I am not persuaded that the objective of preventing the spre a d of the

disease has been shown not to be suff i ciently important to warrant the o v erriding of the

app l icants' right (or perceived right) to non- di scr i mination.

THE ME A S U RES DESIGNE D TO MEET THE OBJECTI V E [19] Because of t h e grave d a n ge r to life presented by infection

with the HIV v irus , s 79

prov i d in g as it doe s fo r t h e pr osecution o f perso n s a c c u se d o f spreading t h e disease b y

deliberately or recklessly i nfecting others with it, i s rationally connected to , and calculated to

achieve, the stated objecti v e. Prosecution in terms of s 79 would n ot be arbitrar y or based on

irrationa l considerations . The p u rpose of a pr osec u t i on is to in vest i gate t h e guilt of a person

accu s ed of criminal conduct and to assess the evidence in a rational manner . A c o ur t o f la w

is w ell equipped to do so.


[ 2 0] It w as submitted on behalf of the applicants that the sentence imposed b y the l eg i s l a ture

is drac onian . T h e respo n dents o n the other h a nd s u bm i tted that t h e wording of the statutor y

Judgment No CCZ 5/2016113 Const. Ap pli c ati o n No eez 08/ 13

provision allows for a sentence of up to 20 years to be imposed. It is clear that the graver the

case the more severe the sentence which will be justified,

and that each case will be

determined on its particular merits . As pointed out above, an infection with the HIV virus

could be fatal for the victim. In effect, in some if not all cases, a sentence of death will have

been imposed on the partner by the actions of the accused person . In these circumstances a

court might well in its discretion consider the maximum sentence to be appropriate.

[21] Accordingly, I am of the view that the applicants have failed to discharge the onus on

them to establish that s 79 of the Code is unconstitutional.

[22] The applications are dismissed.


I agree


I agree


I agree



I agree





I agree


I agree


I agree

Judgment No eez 5/20161 J , 4 Ca n st . App lication No eez 08/13

Zimbab w e Lawyers/or Human Rights, applicants' l ega l practitioners

N ational Pro secuting A u t hority, respondent's legal practitioners