TNMC manager guilty of rape but�

Lebogang Mosikare | Wednesday October 8, 2014 17:04

Magistrate Sijabuliso Siziba found the 46-year old, (name withheld until the High Court determination) guilty, noting overwhelming evidence of him having carnal knowledge of a relative at his home at Molapo Estates on December 13 in 2009.

The convict, through his attorney Keitshegile Sechele, had vehemently denied the charge.

The case took a different turn on Monday when Sechele successfully argued that the disclosure of his HIV status was prejudicial to both his constitutional rights as well as the sentence he would receive.

Sechele said that the disclosure of the accused persons’ HIV status in court publicly violated his right to privacy that is guaranteed by the constitution.

Sechele further argued that while HIV/AIDS is not the only disease transmitted through sexual intercourse, the penal code seemed to sentence people infected with HIV to longer prison terms.

“On the basis of Section 83 of the constitution I pray that the matter be referred to the High Court for determination,” he said.

State counsel, Atina Mandigo said he was fully in agreement that the HIV status of accused persons should not be disclosed in court as it infringed on their privacy and dignity.

He, however, said that if the accused persons knew that they were HIV positive prior to the commission of the offence they should be given harsher sentences.

Mandigo said that according to the constitution, the rights of the accused persons ended where the rights of others started. “I am of the view that the constitution should protect both the victim and accused,” he said.

“I do not have a problem if the matter is referred to the High Court for determination because it may set a legal precedence in future,” said Madingo.

In his ruling, Siziba said the matter should rightfully be referred to the High Court.

“The accused has been convicted of rape. The defence counsel has argued that Section 142(4) seemed to convict accused persons more severely.

“The defence said that revealing the accused status in court is unconstitutional, inhumane and violates their privacy,” said Siziba.

Recognising that the state agreed with the point raised by the defence, Siziba referred the matter to the High Court.

“The proceedings at the magistrate’s should therefore be stayed.

The accused shall be remanded in custody pending the determination of the High Court,” said the magistrate.