HIV case takes new twist

senior Bulawayo female journalist with HIV, took a new twist on Tuesday.
Ms Nonhlanhla Ndlovu, of the Attorney General’s Office responding to Ncube’s application for a review of a Bulawayo regional magistrate’s order that he should undergo an HIV test before his trial kicks off, said the

State is not opposed to Ncube being granted the relief he is seeking.
Ncube wants the ruling by Mr Mark Dzira, the first respondent, to be set aside and that the trial should proceed without any unreasonable delay.
Ms Ndlovu is seeking for direction from the High Court on how to proceed with the case and the file now has to be placed before a judge who will make the final decision.

It is Ms Ndlovu’s contention that the ruling and order by Mr Dzira is incompetent in terms of the sections of law relied upon, particularly Section 302A of the Criminal Procedure and Evidence Act, Chapter 9:07 as read with Section 80 of the Criminal Law (Codification and Reform) Act, Chapter 9:23.

She notes that Mr Dzira made an order for the testing and determination of Ncube’s HIV status in terms of Section 302A (2) of the Criminal Procedure and Evidence Act’s section 80.
Section 80 of the Code provides that a person convicted of rape, aggravated indecent assault and sexual intercourse or performing an indecent act with a young person involving any penetration of any part of his or

her of another person’s body that incurs the risk of transmission of HIV be tested for purposes of sentence.
“Section 79 of the Code under which the applicant is charged is not covered and is not part of the group of offences to which provisions of Section 302A of the CP&E Act on which the magistrate relied on in his ruling when he ordered Ncube to under go an HIV test,” she submitted. Ncube through his lawyer, Mr Mlweliwenkululeko Ncube of Munjanja and Associates is challenging the law which the magistrate based his order.

Mr Ncube argued that the law that the State was relying on in trying to have his client tested did not apply to the charge, which his client is facing.
Mr Ncube urged the court not to allow the State to smuggle laws that are not applicable to the circumstances of the case that his client is facing.

He argued that the State was just trying to prevent him from making an application for refusal of remand on the charge pertaining to deliberately infecting someone with HIV.
Ncube has not been formally charged with contravening Section 79 (b) of the Criminal Law (Codification and Reform) Act, Chapter 9:23 (deliberate infecting another person with HIV) and contravening Section 88

(a) of the Postal and Telecommunications Services Act (send by telephone a message that is grossly offensive or is of an indecent, obscene or threatening character).
He is out of custody on US$100 bail and the court ordered him not to interfere with State witnesses and he should reside at Lot 2, Impatheni Farm in West Nicholson. He will next appear in court on 5 August.
The court heard that from August 2009 to July last year, Ncube fell in love with the complainant.

During the month of September 2009, the two lovers had unprotected sex and they continued having unprotected sex until July last year.
In March 2010, the complainant discovered that Ncube had lost his wife three to four years back and she asked Ncube the cause of death and it is alleged that he was shocked by the question but did not disclose the cause of his wife’s death.

She also discovered on 31 July last year that Ncube had another relationship with another woman when they were still going out and as a result their relationship broke down on 1 August last year.
The complainant is claiming that she never had any sexual relationship with any other person until she went to New Start Centre for a re-test on 1 April this year and the results were positive.
On 7 April this year, the complainant sent Ncube a message saying: “It’s just wrong and it’s wrong that you did not tell me your status yet I remember telling you that I went to New Start Centre and tested negative that was during the first month of our love.” Ncube allegedly responded by way of text message saying; “Do you know my status you b****.”