Bulawayo High Court judge, Justice Maphios Cheda, yesterday quashed the ruling by regional magistrate Mark Dzira compelling Insiza South Member of the House of Assembly Siyabonga Ncube, to undergo an HIV test before his trial on charges of infecting a female journalist with the virus commenced.
Cheda made the ruling after Ncube — a member of the smaller MDC party led by Welshman Ncube — approached the High Court on July 13 challenging the order for him to be tested for HIV, arguing Dzira grossly erred by arriving at that decision.
He applied for the ruling to be set aside and demanded expediency in his trial.
“It is ordered that the ruling of the magistrate be and is hereby set aside. There be no order as to costs,” Justice Cheda said.
However, the jugde advised Masimba Munjanja whose law firm is representing Ncube, that he could not make an order to expedite Ncube’s trial, leading to the order being amended to remove that condition.
Justice Cheda’s order came hard on the heels of a response to the MP’s application for a review of Dzira’s ruling by Nonhlanhla Ndlovu for the Attorney-General’s Office who conceded the magistrate erred by ordering Ncube to undergo compulsory HIV testing, describing the ruling as incompetent.
She said section 302A (2) which Dzira relied on to arrive at his decision did not apply to section 79 Ncube is accused of contravening.
Ndlovu said the section only applies to suspects charged under section 80 of the Criminal Law (Codification and Reform) Act, which specifies the offences as rape, aggravated indecent assault and having sexual intercourse with a young person, for purposes of sentence only.
Ncube is facing charges of deliberately infecting a Bulawayo female journalist with HIV and sending an abusive mobile phone text message to her.
The MP approached the High Court through his lawyer, Mlweliwenkululeko Ncube, from the same law firm.
In the case HCR216/11, Dzira and the State were cited as 1st and 2nd 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 MP’s lawyer opposed both applications and said the postponement by the State was a way of delaying the trial to try and bolster its otherwise weak case against his client.
Ncube (48) of Lot 2, Impateni Farm in West Nicholson, has not been formally charged with deliberate transmission of HIV and sending a message that is grossly offensive or is of an indecent, obscene or threatening character.
He is due back in court on August 18. Ncube was granted $100 bail and ordered to reside at his farm and not to interfere with witnesses.