Constitutional Hill

Helen Zille, the HIV populist

Political leaders holding executive office (like the President and the nine Premiers) cannot be expected to know everything about every conceivable subject. That is why they employ advisors to assist and advise them. However, sometimes they think they know everything about everything (always a dangerous thing for a politician to think, as we know from experience with former President Thabo Mbeki) and sometimes their advisors fail to do their job properly.

Thus President Jacob Zuma, apparently ill served by his legal advisors, have made some serious blunders over the past two years. First he relied on an obviously unconstitutional provision to try and extend the term of office of a great Chief Justice, then he appointed a retired Constitutional Court judge to lead an inquiry into Bheki Cele’s fitness to hold office when he was legally required to appoint a judge from the High Court or the Supreme Court of Appeal.

It is unclear whether Premier Helen Zille relied on advisors before making truly astonishing statements about the criminalisation of sex or whether she came up with her hare-brained scheme all by herself.

Zille said earlier this week that she was so worried about the spread of HIV and its cost to the government that she wants men who have multiple sexual partners and refuse to use condoms to be charged with attempted murder. Zille told a wellness summit hosted by the provincial health department in Newlands on Tuesday that it was time the government shifted its exclusive focus from treating diseases to preventing them and promoting wellness.

If she was quoted correctly, her statement represents a frontal attack on the Rule of Law and the basic principles of criminal law applicable in any democratic society.

If she said that men who have multiple sexual partners and refused to use condoms should be charged with attempted murder regardless of whether they are HIV positive and regardless of whether they knew that they were HIV positive, she was advocating the criminalisation of conduct that no civilised society based on the Rule of Law and a respect for human rights would criminalise.

A fundamental principle of the criminal law in a country that adheres to the rule of law is that one could only be charged and found guilty of a crime (or attempting to commit a crime) if one could be proven to have had the intention to commit the crime or (in exceptional cases) had the knowledge that his or her actions could have resulted in the commissioning of unlawful action and nevertheless negligently proceeded to act. In South Africa culpable homicide is the unlawful and negligent killing of another. Attempted murder is committed where one inentends to kill somebody else but fails in doing so.

Merely potentially endangering the life of another can never be culpable homicide or attempted murder and one cannot be convicted of attempted culpable homicide. One can only be convicted of attempted murder if it can be proven that one had the intention to kill another but failed to do so. In S v Naidoo the SCA set out the position quite clearly:

What the crimes of murder and culpable homicide have in common is a fatal outcome for a human being. Absent a death, absent the particular crime. What they do not have in common is that absent a death, there may be a conviction of attempted murder but not a conviction of attempted culpable homicide. The reason for the difference lies in the distinction between the two forms of mens rea which are essential elements of the respective crimes of murder and culpable homicide.

The crime of murder cannot be said to have been committed unless the act or omission which caused death was intentionally committed or omitted and death was the desired result, or, if not the desired result, at least actually foreseen as a possible result the risk of occurrence of which the accused recklessly undertook and acquiesced in. In short, dolus in one or other of its manifestations (directus, eventualis, indeterminatus, etc) is the kind of mensrea which must have existed. Where the act or omission is accompanied by such dolus but death does not in fact ensue, it is easy to understand why the accused’s conduct should be visited none the less with penal sanctions. A deliberate attempt to commit the crime of murder cannot be ignored and left unsanctioned simply because the perpetrator has failed to achieve his or her objective.

Where it can be proven that a person intentionally tried to kill another by infecting him or her with the HIV virus (which would be very difficult to prove) a person could be charged with attempted murder. But where someone does not know his or her HIV status and have sex without a condom, it could never lead to a criminal conviction for attempted murder due to the absence of intention. If somebody negligently transmits HIV to another and that person actually dies, the person could theoretically be charged with culpable homicide, but proving the causal link between the sexual act and the death of the person as well as the negligence on the part of the accused would be almost impossible to do.

Given the fact that anti-retrovirals are now widely accessible, a person who responsibly gets tested and take this medicine will in all probability live a long and productive life, which means that it would be almost impossible to prosecute someone for attempted murder as the state would not be able to show the causal link between the sexual act and the death.

In the age of ARVs, deliberately transmitting HIV to another could not be viewed as attempted murder because one’s action would not lead to the death of the other person. Where a person dies of an HIV related illness, the accused charged with his or her murder or with culpable homicide would argue that but for the failure of the deceased to take ARVs death would never have occurred and that there was hence no causal link between the sexual act and the death.

There are good reasons for this. In a constitutional democracy — as opposed to a theocratic state — the criminal law cannot be used to punish individuals merely for not conforming to Judaeo-Christian moral standards regarding sexual behaviour. If one criminalised all unprotected sex with one or several partners, one would be punishing people for something that might never have happened (HIV infection, leading to death) or for something they might not have foreseen at all (as they might not have believed that they were HIV positive at all or might not be HIV positive). One would be punishing people for not behaving in a manner one believes is appropriate — regardless of the consequences or potential consequences.

The criminal law then becomes an oppressive and authoritarian instrument of social control, turning large numbers of ordinary citizens into instant criminals. Where the criminal law punishes behaviour not based on the consequences or potential consequences of said behaviour but for its own sake and without taking into account the guilt of the accused, the Rule of Law is fundamentally undermined.

Perhaps Premier Zille was misquoted or she “misspoke” — as Hillary Clinton famously “misspoke when she said she had to evade sniper fire when she was visiting Bosnia in 1996 as first lady when, in fact, she was greeted by flower-bearing children. Perhaps she meant to say that somebody who has multiple sexual partners and knows that he is HIV positive but nevertheless fails to use a condom and then transmits HIV to a partner who later dies from AIDS related illnesses should be charged with attempted murder.

Even so, this view is quite shockingly misinformed and would have disastrous consequences. It would create an incentive for some men not to get tested for HIV and hence not to take ARVs. Not only would the men then die needlessly but those men would be also far more likely to transmit HIV to their sexual partners. This is because an HIV positive person on ARVs whose viral load becomes undetectable are far less likely of transmitting HIV than one who is not on ARVs and whose viral load is high.

Criminalising sexual behaviour in this way might therefore increase the rate of HIV transmission. It will certainly not decrease it.

Julius Malema is often criticised for being a populist — saying things that are truly idiotic or even dangerous but which he knows would be popular with his constituency. But he is not the only populist politician around. This statement by Premier Zille is a classical populist statement: idiotic and dangerous but quite popular with a certain constituency. She should have known better. And if she did not, she should have known to ask somebody who is a bit more knowledgable than herself to inform her about the legal and medical issues around HIV.

  • Pierre

    Well argued Pierre. Criminalising sexual conduct almost never works, it satisfies a moral superiority and wins votes. It won’t stop HIV. That is another project entirely.

  • Joseph Shaw

    Hear, hear Prof!

  • tim

    I agree that, where the “perpetrator” does not have reason to consider his HIV status, Zille’s suggestion (assuming that it is correctly reported) is nonsense.

    However, does a knowingly HIV positive person who has unprotected sex not have the requisite intention (in dolus eventualis – with regard to the infection and possible death of a partner) to support a charge of murder / attempted murder?

  • Gareth

    If I have multidrug resistant TB and go out in public and cough should I be charged with attempted murder?

    It is also the choice of the sexual partner to insist you use a condom. If your partner forces you to have sex without a condom it is rape and they should be charged accordingly.

  • Brett Nortje

    Ook vir ‘n lektor!

    Het jy al die VuurwapenbeheerWet gelees?

    “sometimes they think they know everything about everything (always a dangerous thing for a politician to think,”

  • Nathan Geffen

    Good article Pierre.

    There are actually very few people with HIV who deliberately transmit it.

    People are most infectious during the primary sero-conversion stage, i.e. the few weeks or months after being infected when they have no idea they are HIV-positive. This is one of the big challenges of HIV prevention. Criminalisation, besides being cruel, is very unlikely to help resolve this problem. On the contrary, it might make it worse by discouraging people from finding out their status.

  • Samantha

    Very well written and I couldn’t agree more! Much eye-rolling coming from my side and even from her regular supporters on Twitter.

  • Brett Nortje

    Interesting background about the AIDS-denialist:

    Mbeki: Americans had early concerns
    Princeton Lyman
    09 November 2011

    US ambassador Princeton Lyman noted intolerance of criticism, inability to delegate in 1995 cable

    Cable from American ambassador to South Africa Princeton Lyman, US Embassy Pretoria, Wednesday May 10 1995




    After a year in office deputy president Thabo Mbeki’s image appears a bit tarnished, the result of his questionable handling of the firing of Winnie Mandela, his haste to cast doubt on Allan Boesak’s culpability on corruption charges, his waffling on the question of international mediation and his attacks on the media. Though the man who would be president remains untouched by personal scandal and is unchallenged in his senior party and government positions, his principal weakness seems to be that he cannot see that association with certain people can be damaging to him.

    While Nelson Mandela would probably like to see Mbeki succeed him as president of the ANC and South Africa, the gift is not entirely his to give. Mbeki still has the hurdle of the ANC’s 1997 national conference to overcome. A lot can happen between now and then, and we hear reports that forces already are quietly working to undermine him. However, we believe the kingmakers of 1999 could be the seven ANC provincial premiers. End summary.

    The runner stumbles

    Mbeki has gone through a bad patch of publicity of late. First, instructed by the president to fire one of his key allies in the ANC, Winnie Mandela, from the cabinet he tried to talk her into apologizing. Mrs. Mandela did not, writing instead a bitter letter that amounted to an ad hominem attack on her estranged husband. Finally Mandela fired her himself, skipping a few constitutionally stipulated steps, apparently having been poorly advised. Mrs. Mandela threatened to sue and when it became apparent she had solid legal grounds, she was reinstated, only to be fired again. It was an embarrassing episode during which Mbeki (not entirely coincidentally) managed to find himself out of the country. The white press criticized Mbeki as indecisive.

    Next, Mbeki rushed to claim a report prepared by his legal advisor, Mojanku Gumbi, exonerated disgraced ANC Western Cape leader Allan Boesak of culpability in corruption charges. A senior ANC official told us that Boesak, with tears streaming down his face, visited president Mandela at ANC headquarters just prior to the release of the report’s findings to proclaim his innocence. Based on Mbeki’s statement and Boesak’s dramatic appeal, Mandela publicly voiced his confidence in Boesak, saying the latter should receive another ambassadorship.

    Boesak crowed about his “rehabilitation” and declared he was ready to serve his country’s government. However, since the investigation by the office of serious economic offenses had not been concluded, the president and deputy president’s statements smacked of a whitewash, which the press here criticized mercilessly. Gumbi subsequently clarified that the report only stated that she had seen no evidence implicating Boesak of pocketing foreign donor funds. Mandela backpedalled on the promised appointment, and Mbeki allegedly told Boesak to shun the spotlight while he looked for a job for him, possibly at ANC headquarters.

    On may 5, a well-connected ANC lawyer told us Gumbi’s short report was meant only as an update for internal use, not a final, public report. He strongly criticized Mbeki for releasing the report, while expressing confidence in Gumbi.

    Mandela has also given Mbeki the lead in laying out the ANC’s explanations for failing to act on the April 1994 agreement with Inkatha and the NP to seek international mediation of certain outstanding constitutional issues. Mbeki was also charged with negotiating the issue with the IFP and NP. While privately reassuring to Inkatha leader Mangosuthu Buthelezi, in his public statements on the issue Mbeki has taken a particularly hard line. The ANC has in consequence taken a drubbing from assorted party spokespersons, journalists, and other observers.

    According to media reports, Mbeki in recent weeks has been whipping up anti-press sentiment both in the ANC’s parliamentary caucus and the national executive committee (nec). He blamed the media for his recent troubles, pointed out that the press was dictating ANC decisions, and cultivated a fear among ANC activists that a hostile press will keep anti-ANC news in the headlines as momentum builds up for the November local government elections. One influential newspaper reported that Mbeki’s suspicion of the media led him to call for radio and television time slots for government broadcasts. Some observers here interpret Mbeki’s intolerance of criticism as a residual characteristic of his days in exile, when the liberation movement brooked no dissent.

    Wheeler dealer

    While Mbeki may have been scored by the press, his position within the ANC and government is secure. Self- assured, articulate and charismatic, he remains one of the country’s shrewdest politicians. He has placed his allies in key government portfolios, and continues to build up and call in favors. Not straitjacketed by ideology, Mbeki is in the same pragmatic camp as Cyril Ramaphosa. If he has a weakness it is an inability to foresee the harm that association with certain people can cause.

    Since his reelection as ANC secretary general and the death of key supporter Joe Slovo, Cyril Ramaphosa’s rivalry with Mbeki has subsided. Mbeki lieutenants appear concerned that deputy secretary general Cheryl Carolus is a becoming a magnet for Mbeki’s adversaries. Anc international affairs director Yusuf Saloojee told us that the employees in his office were bypassed for a raise granted to all ANC headquarters employees in 1994. Informed of the disparity, president Mandela instructed Carolus, who is in charge of the ANC’s day-to-day operations, before the national working committee in April 1995 to rectify the situation immediately. Saloojee himself collected 68,000 rands (approximately usd 18,900) in back pay. Saloojee also told us that Carolus, who is close to key Mbeki rival Mac Maharaj, fails to inform his department, which acts as Mbeki’s eyes and ears at headquarters, of important meetings.

    In his government offices, one is greeted by the sight of ministers and party officials waiting for Mbeki to receive them and to take action on a host of personal and political matters. Due to poor staffing and his punishing travel schedule, much business falls through the cracks. Mbeki has been criticized for missing appointments, and documents lie in his in-basket for weeks. He is constitutionally unable to delegate decision making authority, and exhausts himself by becoming excessively involved in the most minute details on a range of issues.

    After a year in high government office Mbeki remains personally untainted by scandal. Mbeki has always lived comfortably, thanks largely to his wife’s income as a United Nations employee and bank official, but never sumptuously. A respected female journalist and longstanding embassy contact confided to us that she avoids one-on-one sessions with Mbeki because he has made sexual advances toward her. However, such stories are relatively rare, and Mbeki has not gained the reputation of a “womanizer”.

    Mandela’s successor?

    Mbeki’s most important asset is the trust and affection of Nelson Mandela. Mandela has made him the Mr. Fix-it of the government and handed him increasing responsibility for the day-to-day administration of the government. If Mandela could, he would install his hand- picked choice for successor in the presidency of both party and country in 1997 and 1999, respectively. However, the gift is not entirely Mandela’s to give.

    Mbeki still has the 1997 ANC national conference to survive before he can claim the mantle of leadership. At this writing it is difficult to predict how political forces within the party will be ranged at that time. We find it plausible that ANC provincial premiers could begin building power bases and machines in their provinces. Assuming that none of these satraps-in-the- making chooses openly to challenge Mbeki for the ANC leadership, they could very well become kingmakers, whom Mbeki will have to court assiduously. Indeed, Mbeki spends a considerable amount of time visiting the provinces and handling ANC problems there in recognition of this fact.


    Mbeki’s performance after a year in office has sparked some revisionist thinking about the man. While still respected for his formidable intellect and political infighting skills, we get the sense that some people here are beginning to question more openly what Mbeki stands for. Mandela is letting much of the buck stop at his deputy’s desk, and problems at that level have proven impervious either to his disarming charm or the tactics he has so often used to demolish rivals. His office is woefully staffed and not organized for handling this type of responsibility (Mandela’s is not better), which accounts for some of the missteps of recent months. So far he has been able to ride the tiger, but in the running for the next presidency Mbeki will be, in the words of a respected journalist here, a fascinating character to watch. End comment. Lyman

  • Edwin

    Well commented, I think HZ has lost the plot and Amy more of this nonsensical talk from her she will loose most of the male vote, specially the under 30….

  • Evan

    “she was advocating the criminalisation of conduct that no civilised society based on the Rule of Law and a respect for human rights would criminalise.”

    Yet we criminalize the recreational use of drugs. Go figure.

  • Pingback: It’s disturbing to realise that I could look at pictures of cute animals all day | Mission Succexy()

  • Jonathan Berger

    See Ralf Jürgens et al, “Ten Reasons to Oppose the Criminalization of HIV Exposure or Transmission”, available at

  • Dirk

    Ag kom nou Pierre. Don’t you think HZ was just trying to communicate the serious danger and stupidity of having unprotected sex with multiple partners? Obviusly it was an exagerated statement, maar dalk ruk jy ook nou bietjie die hoender.

  • Pierre De Vos

    Helen Zille tweeted: “Easily. Make testing compulsory and failure to disclose +status before unprotected sex a crime.”

    So much for respect for human rights….. Why not lock up HIV+ people in concentration camps?

  • Ad

    Ag man she just wants to put a crimp in those who love group sex, ja ja Bring on the sexual concentration camps – we can put them next to the makwerekwere tents… ag balls that won’t work. Lets just cordon half of the Cape off call it the Fascist Cape – move the mutha-grundies in there, and leave the fairest Cape to those who lead lives sans a moral HIGHground.

  • Ad

    Dirk – you should read the Fascist Frau Zille’s plan on teen pregnancy. Whoa now there’s a bruised peach.

  • Ad

    Can we at the same time criminalize X/Mdr/TB transmission aswell?!?!?

  • Deloris Dolittle

    No Pierre, maybe she just wants to be the first person in this country who brings back the word responsibility back to this country. Why should a person be allowed to after all this time and all the education that surrounds HIV be able to get free medication after having unprotected sex. We do not have enough money in this country to keep paying for free medication for something that can be prevented but people choose to ignore. The MEC in JHB said he is not to blame for accident that has put a 18 year old in a coma he was not driving. Our president says he is not responsible for the R400m expenses to his residences and can not stop it. No one takes responsibiity for themselves, no the state must do everything for us. Well they are not able to that is that. We have all these rights but no responsibilities. It is not sustaineble.

    So how so you balance these rights Pierre? A person with HIV has a right not to reveal his status but surely the sexual partner has a right to be protected from being infected.

  • ozoneblue

    Pierre De Vos says:
    November 10, 2011 at 14:14 pm

    I agree with PdV. Everybody, this is the “Democratic” Party. And if you know who votes for them you will not be surprised.

  • Mikhail Dworkin Fassbinder

    @ PdV

    “Why not lock up HIV+ people in concentration camps?”

    Yes, perhaps Madame Zille could learn something from Fidel’s bold experiment in Cuban isolation camps!

  • Wayne

    I think we should be looking at ways to keep people out of nail. Not put more people away.

  • Precious

    Let’s just keep spreading that virus then.

  • Pierre De Vos
  • Maggs Naidu –

    Deloris Dolittle
    November 10, 2011 at 14:38 pm

    Hey DD,

    “No Pierre, maybe she just wants to be the first person in this country who brings back the word responsibility back to this country.”

    Well said!

    The word responsibility abut sums it up.

    It’s unfortunate that acting responsibly is not on the agenda.

  •!/thisbebaer Baer

    Weirdly, people on Twitter have been accusing her of racism.

    Populism? Sure. Racism …?! Who’s the racist in that equation? (The accuser, of course.)

    Thanks, Helen Zille. My friends ask me to join the DA, and I have to tell them No because of incidents like this. Two steps forward, three steps to the side, one step back … The DA does almost as much dancing as the ANC.

    Thankfully, it’s at least less destructive.

    Hopefully they continue to formulate policies beyond their 8% Growth Path. The more people know what their official positions are on important matters, the more of an informed choice they can make. I’m looking for some progressive-ness …

    Indicate to me that you’re a progressive party, DA. Enough of this moral hobbyhorse stuff.

  • Brett Nortje

    You have friends?

  •!/thisbebaer Baer

    More than you have originality, evidently.

  • Maggs Naidu –

    Brett Nortje
    November 10, 2011 at 20:30 pm

    “You have friends?”


    Stop interfering with Baer and find Dworky – I’d like to know if he has jam with ‘toast’!

  • Brett Nortje

    LOL! I’m surprised. Listen, are you about to do a Maggs, where everyone kisses your behind to get you to support the DA?

    Maggs does that every two months, and drags it out for about a week.

  • Brett Nortje

    Maggs, we’re talking about you – not to you.

  • Brett Nortje

    OK. Damn. Since you’ve got me talking to you. I always thought you were right about Juliass being a ‘spent force’. You were absolutely right about the poor turn-out two weeks ago – little more than the number of ANCYL office-bearers.

    I HATE agreeing with you!

  • Maggs Naidu –

    Brett Nortje
    November 10, 2011 at 20:42 pm

    Hey Goofy,

    “are you about to do a Maggs, where everyone kisses your behind to get you to support the DA?”

    Crap man – none of my friends will ask me to join the DA.

    I don’t have any White friends.

    All my friends are good people.

  • Brett Nortje

    I meant everyone who follows this blog, favourite half-wit.

    Especially seeing that Samantha posted this morning.

  •!/thisbebaer Baer

    No, I’m pretty clued up on what the DA is about. I’m waiting for it to change some of the things I disagree with, and then I might think about joining them. But probably not. I don’t tow a party line too well.

    Don’t know from where the Maggs reference came. He/she supports the ANC even though he/she disagrees with it. That doesn’t make any sense to me.

  • Mikhail Dworkin Fassbinder

    Maggs was right.

    Mr Malema is a SPENT FORCE!


  • Maggs Naidu –

    Mikhail Dworkin Fassbinder
    November 10, 2011 at 20:59 pm

    Hey Dworky

    “Maggs was right.”

    LOL – as I suspected it’s soooooooooooo hard for ‘some among us’ to admit that we were wrong!

  • ozoneblue

    Mikhail Dworkin Fassbinder says:
    November 10, 2011 at 14:47 pm

    Not to mention Guantanamo Bay.

  • Andrew

    Unless I missed it, you do not address a very relevant question: what is the state of the law in South Africa with respect to HIV positive persons (be they men or women) who deliberately fail to inform their partners that they are HIV positive, engage in unportected sex, and then infect those partners as a result? Surely our law already criminalizes such irresponsible and reckless behaviour? If not attempted murder, at the very least it must qualify as a form of assault, the harmful physical effects of which will be with the victim for life? To assume that it is too difficult to prove how a person is infected may not be correct. There have been a number of cases in Europe in which people have been found guilty of infecting others. In my view, HZ´s comment should not be dismissed as a futile and counterproductive suggestion to criminalise sexual behaviour. The focus of her comment is not sexual behaviour as such: it is the knowing infection of another person with HIV, and that behaviour is probably already criminal under SA law. If it isn´t, it certainly should be.

  • Mikhail Dworkin Fassbinder

    @ Andrew

    With respect, you are wasting our time by treating HZ’s remarks as the starting point for a “serious discussion” about dolus eventualis, etc. Fact is, HZ is a HOMOPHOBIC POPULIST — no better than MALEMA!


  • mumble

    If injecting deadly poison into somebody else’s body isn’t attempted murder, what is it?

  • Alibhama

    ] This reading is wrong as it ignores the next section
    ] which states that: “Any person found guilty during a disciplinary
    ] proceeding, or the complainant, has the right, within 14 days from
    ] the date of sentencing, to appeal against the conviction or sentence,
    ] to the disciplinary committee of the next highest body of the ANC. A
    ] member is only entitled to one appeal to such next highest disciplinary
    ] body, whose decision shall be final and binding”. This means that if
    ] the NDCA confirms the suspension, Malema will indeed be suspended. It
    ] does not preclude Malema from seeking a political solution at NEC or
    ] at elective conference but he won’t be a member of the ANC.
    I value this direct style: “This reading is wrong BECAUSE …”, instead of the
    fuzzy-talk of liberals where each allegation is guarded by “I think..”.
    Those who say Malema is a spent force, should realise that his MESSAGE
    lives on, i.e. of unjust looting by the whites, as reported in the press:-
    ] Public Protector Thuli Madonsela has found the DA-run Midvaal
    ] municipality guilty of maladministration and improper conduct.
    ] According to Madonsela, a house in Henley-on-Klip that belonged to a.
    ] ratepayer, who was R5 000 in arrears, was later sold by DA leader
    ] Andre Odendaal, the municipality’s debt collector and lawyer, for
    ] R180 000.
    ] Madonsela found that Odendaal’s sale of the Henley-on-Klip house,
    ] valued at R118 000, was unlawful as it was not done via a public
    ] auction.
    ] She has ordered the municipality, which is also under investigation
    ] by the Special Investigating Unit, to review all work done by
    ] Odendaal during his 29 years of service as the municipality’s
    ] lawyer.
    ] Between 2003 and 2005 Odendaal was responsible for the transfer of
    ] 85 similar properties but none of them were sold through auction as
    ] required.
    ] Madonsela said the management and sale of the properties of
    ] ratepayers who were in arrears contravened the Municipal Finance =?
    ] Management Act.
    ] The DA had also failed to foresee a conflict of interest in the
    ] appointment of Odendaal as the council’s debt collector, attorney
    ] and the DA’s constituency chair in 2007.
    It’s reported that this exposure was initiated in 2008, and is still.
    proceding. Can these looters use prescription and other ‘time-out’
    tricks to escape?

  • Alibhama

    Gareth wrote: “If your partner forces you to have sex without a condom it is.
    rape and they (sic YOU) should be charged accordingly.”
    Isn’t this the Swedish law and the basis of the charge against the wikileaks man?
    ] where the “perpetrator” does not have reason to consider his HIV status…
    Again Sweden & other civilised societies: drunk driving is a VERY serious crime.
    But SA tradition was that unless the consequence was killing someone, it’s not
    serious. And re. consequences vs intent: the anglo-law of “showing remorse” is
    another absurdity. Let’s open an acting school for criminals to show remorse.
    ] Boesak, with tears streaming down his face, visited president Mandela at..
    ] Mandela publicly voiced his confidence in Boesak, saying the latter should.
    ] receive another ambassadorship.
    So Boesak’s investment in acting-school-fees, yieled dividends.
    Wasn’t Shaik well trained in theatrics too?

  • ozoneblue

    There must be conservatives in the deep South who are more “liberal” than the DA.

  • ozoneblue

    Perhaps the DA should just campaign for the criminalization of sex between us evil men and the noble women altogether. Change their name to the LLF or the Lesbian Liberation Front.

  • Werner Weber

    I think the idea is ridiculous.

    I wrote an open letter with my views on her idea.

  • Brett Nortje


    Smith is batting through an innings…

  • Hamermen

    I think you are being overly technical. Zille was speaking as a politician to ordinary members of society and not as a lawyer. I don’t think think Zille’s proposal is outlandish.

    Since we have statutory rape I guess we can also have statutory attempted murder. This might apply where one knowingly infect another person with HIV or where one who would reasonably be expected to know his/her status (given the free tasting provided by government) infect someone with HIV.

  • Mikhail Dworkin Fassbinder

    @ Ozoneblue

    “There must be conservatives in the deep South who are more “liberal” than the DA.”

    I doubt this, OB. The “liberals” (by which I mean,”right wing racists”), now completely dominate the DA. Sadly, though, it is not only in the DA that the ghastly face of liberalism is manifest. From all the gloating, chest-thumping, and drum-beating one hears from certain ANC quarters today, it seems to me that a whitish liberal tendency has also infected parts of the ANC.


  • Brett Nortje


    I want Jaco Mulder to contact Pierre De Vos urgently to take a few tips on how to start your own blog so you can get back at Aunty Helen for dropping your broeks and slapping your butt in public.

  • ozoneblue

    “Earlier this week, some on the lunatic fringe of South African politics were making similarly apocalyptic predictions about the DA.”

    What we didn’t see coming though is that the DA would secretly abduct the bust of Hendrik Verwoerd in the middle of the night and that Hellen Zille would want to criminalise heterosexuality in South Africa.

  •!/thisbebaer Baer


    Hold on. Zille’s proposal doesn’t criminalise heterosexuality. It criminalises non-(fundamentalist-)Christian sexual behaviour, and prejudices males.

    What is interesting to me is that Zille mentioned nothing about women. Does she assume they have no responsibility to tell the man to put on a condom? Does she assume that women don’t have the ability to turn away a man if he doesn’t do what she says? This proposed policy is quite patronising to women.

  • Willem Hanekom

    Fantastic, Pierre, as usual. Zille has a history of maddening and histrionic responses to HIV. Yuck! Regardless, were we to put eloquent legal arguments aside, rational sexual behaviour (if possible, because this is not driven by logical norms) is the responsibility of both partners.

  • Lisbeth

    November 12, 2011 at 11:42 am

    Helen Zille assumes correctly on both your points.

    If you lived in the real world, you might know that the majority of South African women wouldn’t dream of telling a man to use a condom, or turn him away if he refuses. Unless, of course, one enjoys being beaten to a pulp, or worse.

  •!/thisbebaer Baer


    Lisbeth, could you have chosen a more boring, mindless response?

    There are already laws to deal with those kinds of men. Adding another one will do absolutely nothing to deter them (more).

  • Mikhail Dworkin Fassbinder


    “Lisbeth, could you have chosen a more boring, mindless response?”

    Thanks, Baer, you really put Lisbeth in her place, and demonstrated the kind of response that encourages adult discussion and debate on this blog!

  •!/thisbebaer Baer

    Sorry Lisbeth. A pet died last night, I couldn’t sleep and I was ‘grumpy’. For some reason I thought your response was an adequate reason for mine, and it wasn’t.

    Consider me suitably chastised, MDF.

  • mhlongo

    The Prof says “But where someone does not know his or her HIV status and have sex without a condom, it could never lead to a criminal conviction for attempted murder due to the absence of intention”

    Not exactly prof, intention probably does exist in the form of dolus eventualis (legal intention), such a person foresees the real possibility that he might infect another with a disease, if he continues, he is reckless to such a possibility (or he reconciles himself with it) thus the requirements of dolus eventualis are met and the person has intention.

    The person would escape liability on the element of unlawfulness.

  • Lisbeth


    Apology accepted. I’m sorry to hear about your pet; I understand perfectly.

  • David Le Page

    My interest here is that of a journalist who sees an awful lot of trees being killed in this country to pursue debates with inadequate reference to facts.

    So far as I can make out, Zille’s comments as reported are ambiguous. It may be that she’s calling for the prosecution of anyone who, knowingly or unknowingly, transmits HIV. But it’s not clear that she is. As quoted, badly, by IOLNews, she is reported as referring to the prosecution of men who “persist” in practising unsafe sex. The use of the word “persist” suggests to me that she is referring to deliberately or knowingly infecting others. But since that’s reported speech, it’s not clear.

    Surely it would have been worth clarifying her position before writing this column? But no-one who has commented on her remarks and condemend her appears to have done this.

    UNAids policy has been quoted by Mark Heywood, who condemns her reported remarks. But the UNAids position allows for criminalisation of knowing transmission:

    Because of these concerns, UNAIDS urges governments to limit criminalization to cases of intentional transmission i.e. where a person knows his or her HIV positive status, acts with the intention to transmit HIV, and does in fact transmit it.

    And a 2008 Open Society policy brief entitled “10 reasons to oppose the criminalisation of HIV transmission” is also clear that:

    for cases in which individuals living with HIV do not act with the specific intention to harm others, countries should not criminalize HIV exposure or transmission. [my emphasis]

    In other words, it is considered perfectly legitimate in much of the progressive HIV policy world to prosecute knowing transmission of HIV.

    But set aside policy. Who amongst us believes that if we were to knowingly have unsafe sex with someone, and infected them, that we would not not be culpable?

  •!/thisbebaer Baer


    The problem with the UNAids policy is that it assumes people have the knowledge and resources available to them to always act responsibly. In South Africa, this may well not be the case.

    There are also some other problems with criminalising transmission. What happens if a HIV+ man wears a condom, but it breaks, the woman then contracts the virus, and she wants to get back at him for infecting her by falsely reporting intentional transmission?
    How do you prove that the man did not intentially transmit the disease to her?
    This is just one example. There are probably a few others I can think of, and a few I can’t, which show how much of a problem criminalisation is.

    This will just result in further wastage of government resources. It is a bad law probably everywhere, but especially in South Africa, where it’s difficult enough to explain to patients what it is that ails them, how they will be treated, and why it is imperative that they take X every Y hours, without saddling the general populace with the further unnecessary, vague fear about the consequences of their status.

    This hasn’t been thought through properly at all.

  •!/thisbebaer Baer

    Oh and Lisbeth

    Thanks for your graciousness.

  • David Le Page

    Well, my query to the DA as to exactly what Zille’s position is has so far gone unanswered, Baer. So we remain in the dark as to whether any thought has gone into it at all.

    I’m wasn’t and am not supporting the creation of any new laws here. (Nor taking a final position on the issue.) I would imagine that existing laws cover it; indeed, the Open Society brief I quoted above suggests that “existing criminal laws can and should be used, rather than passing HIV-specific laws.”

    My points were that a) no-one attacking Zille is actually clear on her precise position, and that b) progressive policy recommendations do not rule out prosecution in some instances.

    My own instinct is that working to address health systems, economic and gender inequality would go a lot further in dealing with these problems than any DA rhetoric about individual culpability.

    But… it seems that some of the calls for criminalisation in some countries come from women’s organisations. I’m not sure I’ve seen those voices in this discussion.

  • Maggs Naidu –
  • Nationalise the Minds

    I agree with Deloris Dolittle and Maggs Naidu.

  • Pingback: Do Zille’s disciples agree with her HIV/Aids views? « Writing Rights()

  • Zoo Keeper

    2 cents

    Seems Zille may have a point.

    If you KNOW you are HIV+ you would be under a duty to disclose this to the other party. If you do, you might get no action and have to make do with some self-help. If you don’t, and you transmit, even through a broken condom (unless there is knowing consent – i.e. the other party knew about the HIV+ but consented to sex with a condom and took the risk) then you have harmed the other person.

    The key is knowledge about one’s status. Unknowing transmission is a grey area, but if it is also criminalized it may also spur on more testing so people are sure they are not caught on the wrong side of the law. Worth a thought?

    Criminal sanction for spreading HIV+ could be the tough love this country needs.

    I think Zille, on this point, is correct. I fail to see why there is this outpouring of “sorry for me” for the transmitter of the disease. The transmitter has seriously injured the recipient, drastically affected their life choices and shortened their lives.

    Why should the transmitter face no consequences?

    It is a contact disease and one that is spread through intimate contact, not like the flu, which is an everyday risk for everyone.

    And if the woman refuses and is assaulted and or raped for refusing, shouldn’t the guy be prosecuted anyway??? Just another charge in that case really – assault GBH, rape, and now attempted murder.

    Apparently there has been a case in Australia where a guilty verdict has been handed down for transmission of HIV+.

    Prof, perhaps you could try and find this case for us?

  • Pingback: Social Protest – revolt against an authoritarian political culture | Human Rights & Social Justice()