Button v The State

The appellant, Joshua James Button, pleaded guilty in the regional court sitting in Krugersdorp to two counts of rape committed in 2018 and 2019 while he was a detainee at the Bosasa Youth Centre. The complainants were fellow detainees aged 15 and 17. In a pre-sentence report, the probation officer recorded, without medical verification, that the appellant was HIV-positive and aware of his status, and that one complainant (CR) had allegedly contracted HIV as a result of the rape. The regional court relied heavily on this alleged HIV-positive status as a weighty aggravating factor and sentenced the appellant to life imprisonment on count one and ten years on count two. The Gauteng Division of the High Court dismissed his appeal against sentence, again relying on the asserted HIV-status. Before the Supreme Court of Appeal, the appellant applied in terms of s 19(b) of the Superior Courts Act 10 of 2013 to adduce further medical evidence. The evidence comprised affidavits and a report from Lancet Laboratories confirming that a blood sample taken from the appellant on 5 December 2023 tested non-reactive (negative) for HIV-1 and HIV-2, and that an expert clinical virologist confirmed it is medically impossible for a truly HIV-positive person to later test negative without a stem cell transplant, which the appellant had never undergone. The appellant explained that he had not controverted the pre-sentence report at trial because his legal representative had given him only five minutes to read it and he did not appreciate the HIV reference until addresses were made.

• Whether the appellant satisfied the requirements under s 19(b) of the Superior Courts Act 10 of 2013 to adduce further evidence on appeal concerning his HIV-status.
• Whether the Supreme Court of Appeal should interfere with the full bench's decision upholding the sentence of life imprisonment.
• Whether the State is required to prove an accused's HIV-positive status by way of medical evidence when seeking to rely on it as an aggravating factor for the prescribed minimum sentence of life imprisonment under s 51(1) of the Criminal Law Amendment Act 105 of 1997.
• Whether there were substantial and compelling circumstances justifying a departure from the prescribed minimum sentence of life imprisonment once the HIV-status aggravator was removed.
• Whether a sentencing court may rely on hearsay evidence in a pre-sentence report regarding an accused person's HIV-status.

1. The application for adducing further evidence on appeal is granted. 2. The appeal is upheld. 3. The decision of the full bench dismissing the appeal is set aside and replaced with the following order: (a) The appeal is upheld. (b) The sentence of life imprisonment imposed by the regional court in respect of count 1 is set aside and replaced with the following: 'In respect of count one: The accused is sentenced to undergo 15 years imprisonment, ten years of which shall run concurrently with the sentence of ten years in count two. Effectively the accused will serve a term of 15 years imprisonment.' (c) The sentence is antedated to 09 November 2021.

The State is obliged to prove by way of medical evidence that an accused is HIV-positive and that he or she knew of that HIV-positive status when seeking to rely on it as an aggravating factor warranting the imposition of the prescribed minimum sentence of life imprisonment under s 51(1) of the Criminal Law Amendment Act 105 of 1997; reliance on unverified hearsay contained in a pre-sentence report is impermissible and constitutes a material misdirection. In an application to adduce further evidence on appeal under s 19(b) of the Superior Courts Act 10 of 2013, the evidence must be prima facie true, there must be a reasonably acceptable explanation for the failure to lead it at trial, and it must be materially relevant to the outcome; however, where the interests of justice so demand, evidence of subsequently arising facts may be admitted exceptionally to avoid a miscarriage of justice, provided the evidence is objectively verifiable, scientific, and unlikely to have been manufactured.

The court remarked that the admission of the medical evidence would hopefully assist the complainants and encourage them to have their HIV-status tested, and urged prosecutors to appreciate the importance of obtaining reliable medical evidence before seeking to rely on an accused's HIV-status for sentencing purposes. The court also noted the supine attitude of the appellant's legal representative during sentencing, who made no meaningful effort to place substantial and compelling circumstances before the regional court despite the existence of several mitigating factors. Additionally, the court observed that the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 provides specific mechanisms for HIV testing and confidentiality, underscoring that courts should not resort to assumption in this context.

This judgment is significant in South African jurisprudence because it establishes that the State must lead reliable medical evidence to prove an accused's HIV-positive status and knowledge thereof when relying on that status as an aggravating factor for a prescribed minimum sentence of life imprisonment under the Criminal Law Amendment Act 105 of 1997. It confirms that hearsay allegations in a pre-sentence report are insufficient for this purpose and that reliance on such unverified assertions amounts to a misdirection. The case also affirms that appellate courts may exceptionally receive fresh scientific evidence under s 19(b) of the Superior Courts Act 10 of 2013 where the interests of justice demand it, particularly to prevent a miscarriage of justice. Furthermore, it reinforces the constitutional imperatives of human dignity (s 10) and bodily and psychological integrity (s 12) in the criminal sentencing context, and serves as a caution to prosecutors to obtain proper medical proof rather than depend on probation officers' reports regarding HIV-status.