Chapter XXI - A State in Denial: The ‘Intentional’ Sexual Transmission of HIV in South Africa

Summary

The call for papers for the Maastricht conference on ‘Denialism and Human Rights’ referred to Thabo Mbeki, former South African President: ‘After having rejected the scientific wisdom about AIDS, former South African President Thabo Mbeki and his government were directly responsible for many avoidable deaths according to research by Harvard University’ (The Guardian, 2008).

On the face of it, present-day South Africa has moved beyond this kind of AIDS denialism, with the present government embracing scientific approaches to HIV prevention and treatment. However, I argue that AIDS denialism is still very present in South Africa, especially in our courts’ approach to the ‘intentional’ transmission of HIV to sexual partners. This paper, therefore, examines the implications of the recent North Gauteng High Court decision in Phiri v. S. for potential charges regarding the wrongful transmission of HIV, and questions the appropriateness of the court's decision in the context of public health efforts to curb the HIV epidemic.

I employ Stanley Cohen's analysis of the elementary forms of denial as a basis of my argument that Phiri v. S. is an instance where the South African courts, when they should have affirmed human rights, instead provided for denialist defence mechanisms, so facilitating the denial of the human rights of those infected and affected by HIV and AIDS in South Africa.

INTRODUCTION

On the face of it, present-day South Africa has moved beyond the kind of AIDS denialism that was espoused by former President Thabo Mbeki. The current South African government embraces scientific approaches to HIV prevention and treatment and South Africa presently has the largest HIV antiretroviral programme in the world, despite isolated concerns regarding delivery.

Nevertheless, notwithstanding these advances, a form of AIDS denialism is still very present in South Africa, especially in our courts’ approach to the ‘intentional’ transmission of HIV to sexual partners. This paper, therefore, examines the implications of the recent North Gauteng High Court decision in Phiri v. S. for potential charges regarding the wrongful transmission of HIV, and questions the appropriateness of the court's decision in the context of public health efforts to curb the HIV epidemic.