The plaintiff was employed by the defendant until she was dismissed immediately and without formality after she tested positive for HIV during a voluntary test. Before her termination, the plaintiff had never been incapacitated due to her HIV status and was leading a normal life. The court held that fair labor practices entitle a terminated employee to know the reason for their dismissal and to explain and defend themselves.
The Second Grade Magistrate Court in Machinga sentenced the appellant to nine months’ imprisonment for the offence of negligently doing an act likely to spread a dangerous disease contrary to Section 192 of the Penal Code when she breastfed another woman’s infant while under treatment for HIV.
The Act provides for the prevention and management of HIV and AIDS, provides for the rights and obligations of persons living with or affected by the diseases, and seeks to remove negative stigma for those who live with or affected by such diseases. The Act prohibits harmful practices that put a person at risk of HIV infection or could result in progression of the HIV infection to AIDS. Such harmful practices are defined as social, religious, or cultural practices, and the violation of this section is punishable by a large fine and imprisonment of up to five years.
The plaintiff appealed to the High Court on the grounds that she was unfairly terminated because of her HIV status. The plaintiff carried the burden of proof to show discriminatory termination. The High Court found that the plaintiff did not meet the burden of proof of showing that her HIV status motivated her termination, when the financial difficulties and restructuring of the company were clear.
Under Section 48, married women can keep their maiden names, use their husband’s surnames, or both, including after the dissolution of the marriage. To qualify for divorce under Section 61, the court must find the marriage can no longer function, and has “irretrievably broken down.” The court can consider factors under Section 64, such as a rape conviction, homosexual acts or other “unnatural” offenses, or cruelty. Under Section 61, no rights to consummation continue after the termination of the marriage.
This divorce case by the High Court centered on the plaintiff being abandoned by her husband, the defendant, after being diagnosed with HIV. The defendant removed all property from their house and refused to pay maintenance. The High Court found the defendant still had the responsibility to pay maintenance, and had to pay her for the equal value of the division of their marital property after their divorce, with her HIV status not limiting her legal rights to the property in any way.
In 1998, the Penal Code Act was amended to make the offence of rape gender-neutral and to move away from a phallus-specific definition. The Amendment introduced a minimum sentence of 10 years to a maximum term of life imprisonment and made bail unavailable to persons accused of the offense. The amendment also made mandatory HIV testing for persons convicted of rape, and in the case wherein rape was accompanied by violence or the rapist was unaware of his or her HIV+ status, a minimum sentence of 15 years with corporal punishment was introduced.
