She was remanded out of custody to 10 July for sentencing. Samukelisiwe Mlilo (34) pleaded not guilty to contravening Section 79 of the Criminal Law (Codification and Reform) Act, Chapter 9:23 but was convicted by senior Western Division regional magistrate Mr Owen Tagu.
In convicting her, Mr Tagu acknowledged that this was a test case but said the State, led by Mr Tinashe Dzipe had proved that Mlilo did not disclose her status to her husband.
It was the court’s finding that she became aware of her status on 4 August 2009 but continued to have unprotected sex with her husband until he accidentally bumped into her medical card in the wardrobe in November 2009.
“The State proved that you knew that you were HIV positive but you did not disclose your status to your husband until he bumped into your medical card on 18 November the same year and then he stopped being intimate with you.
“Your guilt has been proven beyond any reasonable doubt and accordingly you are found guilty,” said Mr Tagu.
In mitigation, Mlilo apologised for having committed the offence, adding that she committed the offence through ignorance.
She implored the court to exercise leniency on her because she is a mother of three with one of the children aged 12 months.
She is the sole breadwinner of her family and her parents depend on her for their livelihoods.
Mr Dzipe also noted that this was a test case in that there was very little or no precedence.
He urged the magistrate to forward the record of the proceedings to the High Court for guidance on the passing of sentence.
“The intentions of the lawmakers were to curtail the pandemic especially by people who engage in reckless sexual encounters. The court is urged to take congisance of the fact that before the complainant got into this marriage he never tested for HIV.
“The State persuades the court to at least adopt a rehabilitative approach in passing sentence,” submitted Mr Dzipe.
Mr Tagu said he needed time to consider what appropriate sentence to pass. The State case against Mlilo was that between 2008 and 2010, knowing that she was infected with HIV, she had unprotected sex with her husband. She then divorced him in 2010.
According to her, she divorced him because he was physically abusing her. After testing positive, the husband filed a report with the police this year. chronicle