Pitty Mpofu and Samukelisiwe Mlilo v The State

The first applicant, a 42-year-old male, was arrested on 5 September 2012 and charged with contravening section 79 of the Criminal Law (Codification and Reform) Act (deliberate transmission of HIV/AIDS), allegedly having deliberately infected his wife with HIV. The second applicant, a 34-year-old woman, was convicted of the same offense after testing HIV positive in 2009 during pregnancy but failing to disclose this to her customarily married husband and continuing unprotected sexual intercourse until he discovered her antenatal card. Both applicants challenged the constitutionality of section 79 on grounds that: (1) it was too wide, broad and vague, thereby infringing their right to protection of the law under section 18 of the former Constitution; and (2) it violated their right not to be discriminated against under section 23 of the former Constitution based on their HIV/AIDS status. The matter was referred to the Constitutional Court in terms of section 24(2) of the former Constitution.

• Whether section 79 of the Criminal Law (Codification and Reform) Act is too wide, broad and vague so as to render the law uncertain, thereby infringing the right to protection of the law as set out in section 18 of the former Constitution
• Whether section 79 of the Criminal Law (Codification and Reform) Act violates the fundamental right guaranteed under section 23 of the former Constitution not to be discriminated against
• Whether the criminalization of deliberate or reckless HIV transmission is reasonably justifiable in a democratic society

The applications were dismissed. The Constitutional Court upheld the constitutionality of section 79 of the Criminal Law (Codification and Reform) Act.

Section 79 of the Criminal Law (Codification and Reform) Act does not violate the right to protection of the law under section 18 of the former Constitution because it is formulated with sufficient precision to enable citizens to foresee the consequences of their conduct, incorporating both actual intent (dolus directus) and constructive intent (dolus eventualis), with the phrase "real risk or possibility" adequately defined in section 15 through components of awareness and recklessness. Section 79 does not violate the right to non-discrimination under section 23 of the former Constitution because discrimination on the basis of HIV status is not one of the enumerated prohibited grounds in section 23(2), which limits prohibited discrimination to race, tribe, place of origin, political opinions, color, creed, sex, gender, marital status or physical disability. The criminalization of deliberate or reckless HIV transmission is reasonably justifiable in a democratic society because: (1) the legislative objective of preventing the spread of a potentially fatal disease is sufficiently important to justify any limitation on rights; (2) prosecution is rationally connected to this objective; and (3) the prescribed maximum sentence of 20 years is proportionate to the gravity of potentially imposing a death sentence on an unwitting victim.

The Court observed that constitutional rights and freedoms are not absolute but have boundaries set by the rights of others and important social concerns such as public order, safety, health and democratic values. A law may impose certain limitations on the enjoyment of individual rights for the benefit of the public subject to the overriding consideration that such law may not be inconsistent with the Constitution. The Court noted that public policy requires a person who knows or has reason to believe he is infected with HIV to make full disclosure to an intended partner to afford that partner the opportunity to make an informed decision. The Court observed that the applicants' desire to safeguard their privacy must be weighed against the intended partner's rights, prominent among which is the right to life. The Court commented that persons who have no reason to believe they are infected (such as through unknowing infection via needle) would not be convicted under section 79 as the elements of subjective awareness and recklessness would be absent. The Court noted that persons who disclose their belief that they might be HIV positive to their partners would not be liable for conviction as the partner could make an informed decision. The Court remarked that in cases where an accused's actions effectively impose a death sentence on the victim, a court might consider the maximum sentence of 20 years to be appropriate in its discretion.

This case is significant in Zimbabwean constitutional jurisprudence as it affirms the constitutionality of criminalizing deliberate or reckless HIV transmission. It establishes that such legislation does not violate the right to protection of the law provided it is formulated with sufficient precision, incorporating established criminal law concepts of intent. The judgment clarifies that the right to non-discrimination under section 23 of the former Constitution is limited to enumerated grounds and does not extend to HIV status. The case balances individual rights (privacy, sexual autonomy) against public health imperatives and the rights of potential victims (particularly the right to life). It demonstrates judicial deference to legislative policy choices in the context of serious public health threats. The judgment also provides guidance on the interpretation of criminal statutes involving concepts of dolus eventualis and the requirement for adequate notice of prohibited conduct. The case remains relevant for understanding the scope of constitutional protection against discrimination and the limits of criminal law in regulating intimate conduct in the context of communicable diseases.