Pretoria – An HIV-positive Aids counsellor who was convicted of attempted murder for having unprotected sex with his unsuspecting girlfriend has lost his appeal in the High Court in Pretoria.
Judge Tati Makgoka and Acting Judge William Baloyi dismissed the appeal of Lovers Phiri, 35, against his conviction on a charge of attempted murder and the six-year jail sentence imposed on him by a Piet Retief magistrate.
Phiri’s former girlfriend testified during the trial that she had met him in 2010 at a local clinic where she underwent an HIV test, that had a negative result.
Phiri was employed as an HIV/Aids counsellor and also responsible for testing.
The complainant was pregnant and had just separated from the father of her unborn child.
Phiri had at that stage been HIV-positive for three years and was aware of his status.
A relationship later developed between the woman and Phiri and they had consensual sex on two occasions, but Phiri on each occasion declined to use a condom, despite being requested to use one.
The woman subsequently tested HIV-positive when she was tested as part of her pre-natal routine.
She testified that Phiri had apologised and pleaded for forgiveness when she confronted him and accused him of infecting her with the HIV virus.
Phiri claimed in court he had informed the woman of his HIV status before the first time they had sex and that he had used a condom on both occasions.
Judge Makgoka said in his ruling last week that the magistrate had been correct in rejecting Phiri’s version as not reasonably possibly true.
He said there was no merit in the argument that he should merely have been convicted of assault.
“The appellant was not convicted of having in fact transmitted HIV to the complainant. The State did not have to go that far.
“It was sufficient for a conviction on the count of attempted murder to establish that the appellant, knowing that he was HIV-positive, engaged in sexual intercourse with the complainant, whom he knew to be HIV-negative, without any preventative measures.
“It must be accepted, and we can take judicial notice of the fact, that HIV/Aids has no cure presently, and the infection with the virus is likely to lead to reduced life span.
“It was established over a decade ago by this court that such conduct constitutes attempted murder.
“The trial court found to be aggravating the fact that he was employed as an HIV-counsellor by the department of health to help in educating people about the dangers of unprotected sex, among others.
“Indeed, much was expected of the appellant.
“The argument that because there was a love relationship between the parties should serve as a mitigating factor is a startling proposition.
“We do not perceive how this could possibly serve as a mitigating factor.
“The very fact could easily serve as an aggravating one, as lovers are expected to protect one another.
“Although the State did not prove that he transmitted the complainant with HIV virus, his conduct remains reckless,” Judge Makgoka said.