Woman wins seven-year legal battle against ex-partner who knowingly infected her with HIV

4 Jul 2024

When Sergeant Lina Antoinette Ndishishi first reported to the police that her ex-partner had knowingly infected her with HIV, she was told she was wasting her time as the case would never go anywhere. Seven years later, the man who assaulted her was convicted of attempted murder and rape.

For Sergeant Lina Antoinette Ndishishi (34), a South African Air Force member whose ex-partner concealed his HIV-positive status and infected her with the virus, the road to justice has been long and fraught with challenges. She faced secondary victimisation at the hands of the authorities she turned to for assistance after discovering she was sick and endured a seven-year legal battle to hold the man who harmed her to account.

In June, Ndishishi’s efforts were vindicated when the Pretoria Magistrates’ Court convicted former South African National Defence Force (SANDF) member Leon Santos Conga of attempted murder and rape for failing to disclose his HIV status and infecting her with the virus. He will be sentenced on 7 August. Ndishishi was represented by AfriForum’s Private Prosecution Unit, which has been supporting her since 2018.

During her ordeal, Ndishishi joined online support groups and learnt that many other women had been knowingly infected with HIV by their partners. However, most were reluctant to lay charges because of the threat of judgment and stigmatisation.

Ndishishi shared her story with Daily Maverick to show that justice was attainable for people in her situation and to highlight the systemic failures that hinder those seeking support.

“I won my case. I am very happy and so proud of myself. This win will not change my HIV-positive status but it will definitely help other people,” she said. “I feel very relieved … because now I feel like maybe there’ll be a woman out there that won’t be afraid; that won’t tell herself, ‘We’ve never had such a case in this country.’ People shouldn’t be afraid.”

Secondary victimisation

Ndishishi found out she was HIV-positive in April 2017. She had approached a health facility after experiencing chronic fatigue, joint pain and throat issues. When she left the appointment where she received her diagnosis, her initial plan was to return home, retrieve her father’s firearm from the safe and end her own life.

“When I opened the safe’s lock, the weapon was not there. I think it was just God [intervening],” she said.

Ndishishi contacted Conga — the only person with whom she’d had sexual relations — for answers. He denied culpability and refused to go to a hospital with her to be tested. She then reported the matter to the South African Police Service (SAPS) at the Pretoria West Police Station.

However, when she spoke to the police, she was told she was wasting her time, as there had “never been such a case in the history of South Africa” — a statement she later discovered was untrue.

“[The SAPS personnel] asked me how old I was and I told them I was 27 years old. I was told that women my age live a promiscuous lifestyle. I remember I was asked by one of the constables how sure I was that it was indeed [Conga] that had infected me. I told him that I knew it was him because I was only involved with him,” said Ndishishi.

“I did not appreciate the question. I was there to get assistance and not to be judged. They never took a statement from me. This was in early May. I actually only wrote my first official statement with the SAPS in July 2017.”

Ndishishi emphasised how dangerous it could be for authorities to make harmful assumptions about a victim in that situation.

“They actually made me feel like I was being promiscuous. That was wrong… I already felt suicidal. If I wasn’t strong enough, I would have still gone home and killed myself. But I told myself, if I do that then it means I’m going to let Conga get away with this and he’s going to keep infecting more people. And I couldn’t do that.”

While the investigating officer who was assigned to Ndishishi’s case did take her seriously, she still saw no real progress, despite checking in with the SAPS every seven days.

“With the first prosecutor that I got — it was a male, African prosecutor — I scheduled an appointment with him and I told him, ‘Listen, I’m not getting any positive response from the SAPS. What’s actually happening?’” she recalled. “He took my statement out, pushed it in front of me and said, ‘Your statement is actually quite long, I’m not gonna read it. And your case is actually not going to go anywhere, you’re just wasting your time.’ ”

At that stage, the prosecutor had not accessed her medical records or Conga’s for evidence.

Getting results

For her first meeting with AfriForum’s Private Prosecution Unit in December 2o18, Ndishishi came prepared with printed articles showing cases in other countries where people were convicted for intentionally infecting partners with HIV. Though the unit had not handled such a case before, their choice to take it on marked a turning point in her fight.

Barry Bateman, the communications manager at the unit, told Daily Maverick it was a “sad reality” that many of the clients who approached the unit for assistance with sexual assault and rape cases had seen an “absolute failure by the authorities from day one”. He linked this to a failure in the training of SAPS officers and National Prosecuting Authority (NPA) members on how to handle such incidents.

“There is no understanding of the dynamics … or what sexual assault and rape involves,” he said. “We understand these things. And this is where we guide … our complainants through the entire process and we put the pressure on the authorities to do what is required. We’ll say quite plainly, without our involvement in many of these cases, they will not see a day in court.”

The NPA had been forced to withdraw the case against Conga twice because of the SANDF’s refusal to provide his medical records. It was only after the AfriForum Private Prosecuting Unit threatened to approach the courts for a mandamus — a court order that compels a public authority to perform a public or statutory duty — that the records were provided.

Bateman said the NPA didn’t always put in the “hard work” to ensure there was adequate evidence in a docket. “In this instance, where they would have encountered difficulty from the SANDF, they rolled over and simply said, ‘We don’t have the evidence.’ They did not use the legal means at their disposal to subpoena whoever was responsible for those records to ensure that they got them… The mechanisms are there in law.”

When the medical records were provided, they showed that Conga had been aware of his HIV status since 2007.

During the trial, Ndishishi learnt that there had been a previous case like hers in South Africa — a man named Mphikeleli Lovers Phiri was convicted of attempted murder in 2013 for having unprotected sex with a complainant while knowing that he was HIV-positive.

She was also assigned a new prosecutor from the NPA, advocate Emile van der Merwe, who made her feel far more comfortable and supported than the previous one.

The ruling

When magistrate Fikiswa Ntlati convicted Conga of rape, it was because Ndishishi had only consented to have sex with him on the understanding that he was HIV-negative. The court accepted her testimony that if Conga had disclosed his status, she would not have agreed to have sex with him. When the couple had discussed the issue, he had withheld this information from her.

He was convicted of attempted murder because he knowingly infected her with a virus that has the potential to kill.

“It was a very good judgment from the magistrate, and we just hope that the higher courts — if they are to hear such matters — would adopt the same approach. This is a form of violence against women. And the courts must take the hard line on this,” said Bateman.

Ndishishi noted that people with HIV who took antiretroviral medications as prescribed and who achieved and maintained an undetectable viral load could have sex with others without transmitting the virus. However, the issue in Conga’s case was that he failed to disclose his HIV status and did not appear to have been consistent with treatment.

“He should have told me he was HIV-positive so that I could decide for myself whether or not I wanted to pursue the relationship with him. He took that right away from me,” said Ndishishi.

She said others who had been wronged in the same way shouldn’t be afraid to seek justice. “You shouldn’t be afraid, especially if you know yourself.”

Daily Maverick reached out to the SAPS and the NPA about the problems Ndishishi initially experienced with the officials who handled her case. Brigadier Brenda Muridili, Gauteng police spokesperson, said the allegations regarding the conduct of SAPS members were “serious and disheartening”.

“SAPS Gauteng management has gender-based violence and femicide [GBVF] as one of the priorities for the province. There are measures put in place to ensure zero tolerance for secondary victimisation of any victim of crime. Guidelines such as the adherence to the Domestic Violence Act and the Ministerial Six Point Plan on GBVF are some of those regulations implemented within the Service. Non-compliance to the regulations is not tolerated,” she said.

Muridili offered to liaise with the SAPS Inspectorate and assist Ndishishi in registering a formal complaint against the police.

“We always encourage the public to speak out against the members who mistreat victims of crime to ensure that departmental action is taken against those involved,” she said.

The NPA spokesperson acknowledged receipt of the questions but had not responded by the time of publication. DM

The contact details for the SAPS Inspectorate head office are 0800 333 177 (toll-free) or [email protected]. The Gauteng office can be reached on 082 442 2000, 082 759 2590 (WhatsApp) or [email protected].

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South Africa

Secondary victimisation

Getting results

The ruling