High Court Overturns Magistrate’s Ruling In HIV Transmission Case

A High Court judge has overturned a magistrate’s decision in the case of Lindiwe Ndlovu, who faced charges for deliberately transmitting HIV under a law that was repealed during her prosecution.

Justice Maxwell Takuva ruled that the lower court’s refusal to refer Ndlovu’s case to the Constitutional Court was legally flawed and marred by procedural errors.

Ndlovu was arrested in March 2022 and charged under section 79 of the Criminal Law (Codification and Reform) Act, which criminalised the deliberate transmission of HIV.

The law was repealed in May 2022 with the introduction of the Marriages Act, raising questions over whether the charges could still stand.

She argued that continuing the prosecution violated her constitutional rights under section 70(1)(l), which protects individuals from being convicted of acts that are no longer offences.

In August 2022, her application to quash the charges was dismissed by the magistrate, who relied on section 17 of the Interpretation Act allowing prosecutions to continue under repealed laws.

When Ndlovu requested that the matter be referred to the Constitutional Court, the magistrate rejected the application, calling it “frivolous and vexatious” and “fatally defective.”

Justice Takuva disagreed, ruling that the magistrate’s reasoning was wrong. He ruled that no “viva voce” evidence was needed to decide the legal question central to the case, effectively allowing Ndlovu’s application to move forward. He said:

“This court cannot allow a decision that is so grossly unreasonable to stand.

“The magistrates’ court misdirected itself in holding that an application based on a point of law could be fatally defective for want of viva voce evidence.”

The High Court also found that the magistrate was wrong to call the application fatally defective while still trying to decide its merits.

The court said the magistrate went beyond their authority by interpreting constitutional issues instead of sending them to the Constitutional Court.

Justice Takuva rejected the magistrate’s claim that the application was frivolous and vexatious, saying the constitutional question came directly from the magistrate’s own earlier ruling.

The High Court set aside the magistrate’s decision and approved Ndlovu’s request for a review, allowing her case to be referred to the Constitutional Court.

No order was made regarding legal costs.

More: The Herald