The State yesterday conceded Bulawayo regional magistrate Mark Dzira erred in ordering Insiza South MP Siyabonga Ncube to undergo an HIV test before his trial for allegedly deliberately infecting a female journalist with the deadly virus.
Prosecutor Nonhlanhla Ndlovu yesterday conceded the ruling was out of sync with provisions of section 302A (2) and section 79 which the magistrate had cited in arriving at his decision.
She said the section only applies to offences of rape, aggravated indecent assault and having sexual intercourse with a young person before asking the High Court to give directions in the matter.
Ncube is facing charges of deliberately infecting a Bulawayo female journalist with HIV and sending an abusive message to her.
“It is respectfully submitted, however, that it is 2nd respondent’s (State) view that the sections relied on as the basis of the order do not apply to the section applicant is charged with (section 79 of the Criminal Law Codification and Reform Act (deliberate transmission of HIV).
“Thus the order that the Applicant (Ncube) should be tested for HIV for determination of his status is in my view incompetent as section 79 does not fall within the group/type of offences for mandatory testing as contemplated in terms of section 302A(2) of the Code.
Wherefore the respondent prays for directions from this Honorable Court vis-à-vis the issue above,” submitted Ndlovu.
The MP approached the High Court on July 13 through his lawyer, Mlweliwenkululeko Ncube, seeking a review of Dzira’s order arguing he grossly erred by ordering him to undergo HIV tests as a prerequisite for the commencement of his trial. He pleaded with the court to set aside the order and demanded his immediate trial.
In the case HCR216/11, Dzira and the State are cited as 1st and 2nd second respondents. Dzira had ordered that Ncube undergoes HIV testing at a government hospital and postponed the trial until the results were available.
His ruling came after the State, represented by the prosecutor-in-charge of regional courts Patrobs Dube, had made two applications, one for the postponement of trial and the other to have Ncube tested for HIV, as had been directed by the prosecution at his initial appearance in court.
However, the lawyer opposed both applications and said the postponement by the State was a way of delaying the case to try and bolster its otherwise weak case against his client.
He said the section cited by the State to compel Ncube to undergo HIV testing did not apply in the circumstances as it only applied to rape, aggravated indecent assault and having sexual intercourse with a young person.
Ncube (48) of Lot 2, Impateni Farm, West Nicholson, was not formally charged with deliberate transmission of HIV and sending a message that is grossly offensive or is of an indecent, obscene or threatening character. The matter was remanded to September 4.
Ncube is on $100 bail.