This article was first published in De Rebus, The South African Attorneys' Journal, in the May 2009 issue on pages 18-21.
Caryl Verrier, Advocate of the High Court of South Africa
Stephen Tuson, Attorney of the High Court of South Africa and Adjunct Professor of Law at the University of the Witwatersrand, Johannesburg
TRANSMISSION OF HIV IN MARTIAL ARTS
A. The Facts
The following facts are posited:
Two martial artists, fighters X and Y, engage in a bout. Unbeknown to fighter Y, but known to fighter X, fighter X is HIV+. Fighter X fails to disclose his HIV+ status to fighter Y prior to the bout. During the course of the bout, both fighters sustain open wounds, fighter X bleeds into an open wound on fighter Y and fighter Y is infected with HIV.
B. The Enquiry
The questions raised are these:
The right to privacy is enshrined in s 14 of the Constitution of the Republic of South Africa Act, 1996. Following such decisions as Bernstein v Bester NO 1996 (2) SA 751 (CC) and NM and Others v Smith and Others (Freedom of Expression Institute as Amicus Curiae) 2007 (5) SA 250 (CC), it is clear that the right to privacy extends to protecting disclosure of one’s private and confidential medical information, including one’s HIV status. There is, in other words, no general duty to disclose one’s HIV status. One cannot be compelled to disclose one’s HIV status.
That said, where non-disclosure of one’s HIV+ status is coupled with conduct which causes transmission of HIV to another, legal liability may follow; criminal liability from the conduct through which HIV is transmitted and civil liability from the non-disclosure.
D. Criminal Liability
A conviction of attempted murder would require proof of, inter alia, the intention to kill, either in the form of dolus directus or dolus eventualis. It would be sufficient for a finding of dolus eventualis, however, that the accused knew himself (or herself) to be HIV+, knew that HIV could be transmitted by his (or her) bleeding into an open wound on another and knew that HIV could cause death. (See C R Snyman, Criminal Law 4ed at 186--187 and S v Nyalunga  JOL 13254 (T).)
Given the bare minimum of facts upon which dolus eventualis could be proved, it is our view that fighter X would likely be found to have had the requisite intention to kill and would therefore be convicted of the attempted murder of fighter Y.
Assault with intent to do grievous bodily harm (assault GBH)
A conviction of assault GBH would require proof of, inter alia, the intention to assault and the intention to do grievous bodily harm, either in the form of dolus directus or dolus eventualis.
With ‘grievous bodily harm’ defined as ‘... connot[ing] serious injury to the health of the victim ...’ (see S v R 1998 (1) SACR 166 (W) at 170), there can be no doubt that transmission of HIV would qualify as ‘grievous bodily harm’. There can further be no doubt that, by definition, a participant in a fight would have the intention to assault.
In our view, therefore, fighter X would be found to have had the intention to assault and the intention to do grievous bodily harm and would be convicted of assault GBH.
E. Delictual liability
In order for fighter Y to succeed in his action for damages against fighter X, he would have to prove each of the elements of delictual liability, namely, causation, negligence, wrongfulness and actual loss. (See Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority 2006 (1) SA 461 (SCA) in para  at 468A—C.)
Proof of the element of causation would require proof, on a balance of probabilities, that fighter X’s non-disclosure, coupled with his engaging in the bout with fighter Y, caused fighter Y to be infected with HIV. Proof that fighter X caused fighter Y to be infected with HIV would, however, present some difficulty inasmuch as, from a medical point of view, it is impossible to prove how or from whom someone contracted HIV. The Court would thus have to decide, as a matter of inference from the proved facts, whether, on the probabilities, fighter X caused fighter Y to be infected with HIV. In this regard, relevant surrounding circumstances would include whether fighter Y was HIV+ prior to coming into contact with fighter X and whether fighter Y contracted HIV during the ‘window period’ after his bout with fighter X.
Despite the practical difficulties inherent in proving the element of causation, we are of the view the difficulties are not insurmountable and that fighter X would likely succeed in proving the element of causation.
Fighter X’s non-disclosure would be negligent if the reasonable person in fighter X’s position would have foreseen the possibility that his non-disclosure would cause transmission of HIV to fighter Y and would have taken steps to prevent it. (See Kruger v Coetzee 1966 (2) SA 428 (A) at 430E)
Snyman at 214--215 explains the attributes of the diligens paterfamilias or ‘reasonable person’ as follows:
‘By “reasonable person” is meant an ordinary, normal, average person. He or she is the person “of ordinary knowledge and intelligence”. He or she is neither, on the one hand, an underdeveloped person, or somebody who recklessly takes chances. The reasonable person finds himself or herself somewhere between these two extremes. The reasonable person is therefore not somebody who runs away from every foreseen danger; he may sometimes take a reasonable risk. …’
Moreover, the ‘reasonable person’ against whom the defendant’s conduct is judged is the reasonable person who finds himself in the same circumstances as did the defendant. (See Snyman at 216.)
In light of this authority, it is our view that:
The risk of transmitting HIV to another could never qualify as a ‘reasonable risk’;
The reasonable person against whom the standard of fighter X’s conduct would be judged is the ‘reasonable person’ who has been diagnosed as being HIV+ and who is possessed of an average HIV patient’s knowledge of HIV and its transmission;
The reasonable person in fighter X’s position would have been aware:
That there existed a risk of transmission of HIV from him to fighter Y in the event of his bleeding into an open wound on fighter Y;
That the prompt administration of anti-retroviral therapy to fighter Y, post-exposure, would significantly reduce the risk of transmission of HIV to fighter Y;
That HIV is progressively debilitating and, ultimately, fatal;
That there is no known cure for HIV and/or AIDS; and
That patients infected with HIV face stigma, shunning and sometime danger to life and limb;
In order to prevent (or reduce the risk of) the possible transmission of HIV to fighter Y, the reasonable person in fighter X’s position would have disclosed his HIV+ status:
To fighter Y, so as equip him to make an informed decision as to whether or not he wished to continue the bout and thereby assume the risk of being infected with HIV; and/or
To the medical personnel at the ring-side, so as to alert him or her promptly to administer anti-retrovirals to fighter Y in the event of fighter X’s bleeding into an open wound on fighter Y;
In failing to disclose his HIV+ status to fighter Y, fighter X would be found not to have conducted himself as would a ‘reasonable person’ in his position and would thus be found to have been negligent.
Proof of the element of wrongfulness would require a finding by the Court that, taking into account constitutional norms, values and principles, the ‘legal convictions of the community and considerations of policy’ determined fighter X’s non-disclosure to be wrongful. (See Van Eeden v Minister of Safety and Security (Women's Legal Centre Trust, as Amicus Curiae) 2003 (1) SA 389 (SCA), Gouda Boerdery BK v Transnet 2005 (5) SA 490 (SCA) in para  at 498G--499B, Minister van Polisie v Ewels 1975 (3) SA 590 (A), S M Goldstein & Co (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd and Another 2000 (4) SA 1019 (SCA) and Local Transitional Council of Delmas and Another v Boshoff 2005 (5) SA 514 (SCA))
It is our view that, taking the following considerations into account, the Court would indeed find that ‘the legal convictions of the community and considerations of policy’ determined fighter X’s non-disclosure to be wrongful.
The competing constitutional rights to privacy, dignity and equality of fighter X, on the one hand, and the rights to life, bodily integrity and freedom of association of fighter Y, on the other hand;
The fact that the prompt administration of anti-retroviral therapy, post-exposure to HIV, significantly reduces the risk of transmission;
The stigma, shunning and sometime danger to life and limb faced by patients infected with HIV;
The progressively debilitating effects of HIV;
The fact there is no known cure for HIV and thus the inevitable progression of HIV towards AIDS and, ultimately, death;
The emotional, financial and social consequences for the families of patients infected with HIV;
The fact that HIV/AIDS has reached pandemic proportions in South Africa and is having crippling effects on the country’s social structure and economy,
Actual loss / harm
The element of loss - being, inter alia, fighter Y’s medical expenses, loss of earning capacity and general damages - could fairly easily be proved by way of a combination of medical, actuarial and other evidence.
In respect of fighter Y’s action for damages against fighter X, it is accordingly our view that fighter Y would likely succeed in proving each of the elements of delictual liability and thus be awarded his damages.
It is, accordingly, our view that fighter X’s non-disclosure would likely attract both criminal and civil liability, the former in the form of convictions of attempted murder and assault GBH and the latter in the form of an award of damages.
G. Remoteness of Harm
In the criminal context, the view is sometimes held that an accused cannot be found to have foreseen the possible consequences of his conduct, and thus to have had intention in the form of dolus eventualis, if the possible consequences of his conduct were only remote or far-fetched, as opposed to ‘real’. (See Snyman at 182.)
The correct view, however, is that remoteness is merely an indicator of whether or not the accused foresaw the possible consequences of his conduct, rather than a requirement for a finding that he had intention in the form of dolus eventualis. (See S v Ngubane 1985 (3) SA 677 (A) at 685F—G, Rapitsi 1987 (4) SA 351 (A) and R v Horn 1958 (3) SA 457 (A) at 463 and 465.)
Therefore, the remoteness of the possibility of fighter X’s infecting fighter Y with HIV would be merely an indicator of whether or not fighter X foresaw the possibility that he might do so, and not a prerequisite for a finding that he had intention in the form of dolus eventualis. It follows that the remoteness of the possibility of fighter X’s infecting fighter Y would be no obstacle to a finding that fighter X had intention in the form of dolus eventualis.
In the civil context, the remoteness of the possible harm is relevant to the question of negligence inasmuch as the view is sometimes held that a defendant could not have been negligent where the possibility of harm was only remote or far-fetched, as opposed to ‘real’. (See Snyman at 216.)
The remoteness of the possible harm is relevant to the second leg of the test for negligence, namely, to ‘[w]hether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable … .’ (See Kruger v Coetzee (supra).) Even assuming the risk of transmission of HIV by fighter X to fighter Y to be only remote or far-fetched, given the gravity of the possible harm (which included death), fighter X would necessarily be required to take steps to guard against it. (See Minister of Safety and Security v Mohofe 2007 (4) SA 215 (SCA) in para , Minister of Education and Another v Wynkwart NO 2004 (3) SA 577 (C) at 580C--D, 582I and 583H)
Self-evidently, the only steps fighter X could possibly take to guard against that harm would be disclosure his HIV+ status to fighter Y (and possibly also to the ring-side medical personnel), so that, with appropriate medical intervention, the harm might be avoided.
In the result, the remoteness of the possibility of transmission of HIV by fighter X to fighter Y would not save fighter X’s non-disclosure from being found to be negligent.
H. Club Rules
The option that immediately presents itself to a fighting arts club or association, as a means of protecting its HIV+ fighters from the potential legal liability discussed above (and perhaps also itself, on principles of vicarious liability) and of protecting its HIV- fighters from becoming infected with HIV, is for the club to invoke its constitutional right to freedom of association (as provided for in s 18 of the Constitution) and to adopt a club rule to the effect that each of its members is required to submit to an HIV test and that he or she is further required to disclose the results of the test to the appropriate member or members of the club. (See Taylor v Kurtstag NO and Others 2005 (1) SA 362 (W) in paras  and  and Bernstein v Bester (supra) in para .)
It is not suggested that a member identified as being HIV+ should necessarily be excluded from fighting but merely that knowledge of a fighter’s HIV+ status is essential in order to place his opponent in a position to give his informed consent to participating in the bout and in order to alert the ring-side medical personnel promptly to administer anti-retroviral therapy in the event of a situation arising in which his opponent is exposed to HIV.
It is our view that, although a club rule requiring disclosure by its members of their HIV status would necessarily constitute a limitation on the rights of HIV+ members to privacy, equality, dignity and freedom of association:
Whether or not the limitation is justifiable must be ‘considered within the context’ of s 36(1) of the Constitution, ie it must be considered whether the limitation is ‘reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including’ the factors set out in ss 36(1)(a) to (e);
The rule would have as its object the protection of the club’s right to freedom of association, as well as the rights of its HIV- members to life, bodily integrity and dignity (ss 31, 11, 12 and 10 of the Constitution, respectively);
The right to privacy is inviolable only in the ‘the inner sanctum of a person’ or ‘the truly person realm’ and becomes subject to limitation as the individual leaves behind the inner sanctum and enters into relationships outside of his or her ‘closest intimate sphere’;
Relationships between fighters would qualify as falling outside of the individual’s ‘inner sanctum’ or ‘closest intimate sphere’ so that, in context, the individual fighter’s right to privacy becomes subject to limitation;
On a delicate balancing of the conflicting rights of HIV+ members, on the one hand, and the rights of the club and HIV- members, on the other, and ‘considered within the context of s 36(1) of the Constitution’, the HIV+ fighter’s rights are required to give way to the rights of the club and HIV- fighters; the club rule will accordingly be ‘reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’ and will be valid and enforceable.
Although, perhaps, any club might baulk at the idea of adopting a rule which circumscribes any of its members’ constitutional rights, it is our view that, in the light of the gravity of the consequences of the negligent transmission of HIV (those being, the potential legal liability discussed above for the HIV+ fighter and/or the club and, ultimately, death for the HIV+ fighter’s opponent), the adoption of such a rule would be not only legally but also morally defensible and, indeed, would appear to be the only option presently available to a club or association to protect its fighters against the risk of infection.