In compliance with section 147(2) the Magistrate ordered that the Appellant undergo a Human Immune Virus - system test to determine
his status in this regard. On receipt of the result of this test the Magistrate recorded that:
"The court has the misfortune to inform the Accused that following a compulsory HIV test ... the results are now ready and they
show that the Accused is HIV positive."
The Magistrate was under the impression that a mandatory sentence of 15 years had to be imposed.
The matter was referred to the High Court for sentence in terms of Section 295 of the Criminal Procedure and Evidence Act. When the
case came before Mwaikasu J the learned Judge, having determined that the conviction was in order, observed that "the medical
test for HIV/AIDS ... turned out to be positive." The evidence adduced in that court was that the Appellant was unaware of this
infection at the time he committed the offence, assuming that it was present at that stage. The court accepted this. It, however,
considered that a sentence of 15 years imprisonment was mandatory in terms of section 147(3)(a). In doing so the decision of this
court in the matter between Dijaje Makuto v The State Criminal Appeal No. 31 of 1999 was overlooked. In this case the court was concerned with a rape conviction and the correct sentence to be imposed having regard to
the provisions of section 142(4) of the Penal Code as amended. This subsection provides for a minimum sentence of 15 years on proof
that the convicted accused is HIV positive. The question raised, and calling for decision as a constitutional issue, was whether
the
section applies in the absence of proof that the offender was HIV positive at
the time the offence
was committed. The relevant passage in the judgment reads as follows:
"As it was not shown that the appellant had the HIV syndrome at the time of the offence of rape was committed, the precondition
for the imposition of the minimum of 15 years imprisonment by section 142(4) (a) as amended has not been established."
This conclusion applies a fortiori in the case of a person convicted, as in this case, of a contravention of Section 147(1). Thus the court was not obliged to impose
the sentence of 15 years and erred in doing so.
Counsel before us acknowledged this, and agreed that a substituted sentence of imprisonment for 10 years would be an appropriate one.
In conclusion I must draw attention to an evidential feature of this case. As I have indicated, according to the record both the Magistrate
and the learned Judge simply told the Appellant that according to a medical report he was HIV positive. This is not the first case
in which such a finding is dealt with in this manner that overlooks the requirements for the admissibility of documentary evidence.
The medical report may be produced and placed on record as an exhibit with the consent of the accused who admits its correctness.
Failing such consent and admission, the person responsible for the report must be called as a witness. This matter has been raised
with the Chief Justice, and he agrees that the necessary steps are to be taken by the Registrar of the High Court to inform all prosecutors
and judicial officers accordingly.
For these reasons the appeal succeeded to the extent that the period of imprisonment was reduced from 15 years to 10 years. These
remarks relating to the admissibility of proof of HIV status must be drawn to the attention of all Judicial officers.
REASONS FOR THE ORDER HANDED DOWN AT LOBATSE ON THE
31st DAY OF JANUARY 2001.
M. KUMLEBEN JUDGE OF APPEAL
I agree
P.H. TEBBUTT JUDGE OF APPEAL
I agree
LORD WEIR JUDGE OF APPEAL
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