The Public Health Bill, 1999

PART V : SEXUALLY TRANSMITTED INFECTIONS

Sexually transmitted infections

58. (1) The provisions of this Act, in so far as they relate to or concern sexually transmitted infectious or diseases, unless otherwise expressed, shall apply or deemed to apply to -

(a) syphilis;

(b) gonorrhoea;

(c) gonorrhoeal ophthalmia;

(d) soft chancre;

(e) venereal warts;

(f) venereal granuloma;

(g) genetal herpes;

(h) HIV/AIDS

(i) any other such infection or disease, the Minister may, by notice published in the Gazette, declare.

(2) Notwithstanding the fact that a person so detained in a hospital or place of accommodation provided has that person's sentence expired, a medical officer or practitioner attending to that person may detain that person for a specified and renewable time in a hospital or such place of accommodation after the expiration of sentence, the underlying reason being the consideration for public health.

(3) Any person so detained in a hospital or place of accommodation who escapes from such lawful custody commits an offence and shall be dealt in accordance with the law respecting escaping from lawful custody and in addition the court may make relevant orders as it deems fit.

Duties of Health practitioners

59. (1) In this Part, unless the context otherwise requires - "health practitioner" includes a medical officer, medical practitioner, pharmacist, nurse, traditional healer and any other person, the Minister may, by notice published in the Gazette, designate as a health practitioner.

(2) Every health practitioner who attends, dispenses drugs to, or advises any patient in respect of any sexually transmitted infection or disease from which the patient is suffering shall -

(a) advise or direct the attention, of the patient to the infectious nature of the disease and the penalties prescribed by this Act for infecting any other person with such infection or disease;

(b) advise and warn the patient, if not already married, against contracting a marriage unless and until the patient has been cured of such infection or disease or is free from such an infection or disease in a communicable form;

(c) give to the patient such information and education on safe sex, treatment of sexual infection or disease and give an informed education and information on the responsibilities, obligations and duties of persons suffering from a sexual infectious diseases in relation to other persons and further direct the patient to seek such further information or counselling from the Ministry; and

(d) advise the patient, to disclose the name or names of, and to bring or persuade, the patient's sexual partner or partners to undergo a medical examination or treatment.

(3) Every health practitioner who knows or has reason to believe that any person is suffering from a sexually transmitted infection or disease in a communicable form and is not under treatment by a health practitioner, or is not attending for medical treatment regularly as prescribed by such health practitioner; shall -

(a) if the health practitioner feels it is reasonable to do so, call and counsel such person, failure of which;

(b) inform the Director of Health Services or the Minister, either of whom, may order the detention of such person, on such terms and conditions, in a hospital or such similar institution for purposes of medical treatment of the sexually transmitted infection or disease.

Transmission of infection an offence

60. (1)Any person who knows or ought to know is suffering from a sexually transmitted infection or disease transmits or wilfully transmits or negligently or recklessly transmits or conveys to, or infects with, such sexually transmitted infection or disease, another person, or does or permits or suffers any act likely to lead to the infection of any other person with a sexually transmitted infection or disease, commits an offence and subject to subsection (2), shall be liable, on conviction, to a fine not exceeding five hundred Emalangeni or to imprisonment for a period not exceeding six months.

(2) The punishments specified in subsection (1) shall be applicable to persons who provided the other party legally consented to the sexual intercourse and shall not be applicable to persons who are also charged or may be charged or are chargeable under the criminal justice or with a criminal prosecution.

(3) Any person, who knows is suffering from the acquired immuno deficiency syndrome, commonly referred to as AIDS, or who has tested positive to the existence of such disease in that person's body, and transmits, conveys or infects another person with such disease or agents that carry such disease, or who does or permits or suffers any act likely to lead to the infection of any other person with such disease or agents carrying such disease or cells likely to develop to such a disease, commits an offence and is liable, on conviction, to life imprisonment and in addition to the life imprisonment, liable to compensate the infected person of an amount to be determined by a court of law.

(4) Any person who is convicted of a sexual offence, such as rape, indecent assault, sodomy, incest and others, who while engaged in the unlawful sexual intercourse with the victim, infects the victim with the acquired immuno deficiency syndrome shall, in addition, be sentenced to death and the Criminal Procedure and Evidence Act, shall be applicable and in addition to the sentences shall be liable to compensate the victim of an amount to be determined by a court of law.

(5) Any person who is convicted of a sexual offence, such as rape, sodomy, incest or indecent assault, who while engaged in the sexual intercourse with the victim, infects the victim with any of the sexually transmitted infections or diseases specified under section 58 shall in addition to the sexual offence, be liable to a fine not exceeding ten thousand Emalangeni, which fine the Minister by notice published in the Gazette may amend, or in default of payment, to imprisonment for a period not exceeding six years.

(6) Where a person is acquitted of the sexual offence and it is found that the acquitted person did infect the victim with a sexually transmitted infection or disease, the acquitted person shall be tried for unlawfully infecting that person with a sexually transmitted infection or disease and the punishments shall be those found in subsections (4) and (5), whichever is applicable.

(7) The enquiry and trial respecting the part of infecting another person shall be conducted in the strictest confidentiality and in camera, and the identity or any matter or thing that may reveal the identity of the victim shall not be disclosed.

Detention, treatment of sentenced infected persons

61. (1) Where any person sentenced to imprisonment under this Act or any other law is suffering from a sexually transmitted infection or disease or from any other communicable disease in a communicable form, that person, may pursuant to a written order of a magistrate or written order of a medical officer attached or contracted to the or Correctional Services, be removed to a hospital or special ward or other place of accommodation provided.

(2)The infected person mentioned in subsection (1) shall be detained, in such mentioned place, under medical treatment and afforded the necessary treatment until cured or, subject to subsection (3) and (4), expiry of sentence.

(3)The person mentioned in subsection (2) shall not be released from the hospital or place of detention, unless -

(a) the health practitioner treating the person is satisfied that the public health can otherwise be safeguarded against infection; and

(b) that the person if released, when not fully cured, shall undergo treatment under the strict supervision of a medical officer or medical practitioner; and

(c) the release is lawful and takes into account the terms and conditions of the order of imprisonment issued by a court of law.

(4)Not withstanding the fact that a person so detained in a hospital or place of accommodation has that person's sentence expired, a medical officer or practitioner attending to that person may detain that person for a specified and renewable time in a hospital or such place of accommodation after the expiration of the sentence, the underlying reason being the consideration for public health.

(5)Any person so detained in a hospital or place of accommodation who escapes from such lawful custody commits an offence and shall be dealt with in accordance with the law respecting escaping from lawful custody and in addition the court may make relevant orders as it deems fit.

Certain infected persons may not be detained

62. No person shall be detained in a hospital or other detention accommodation for sexually transmitted infection or disease, if -

(a) that person does not or no longer suffers from such disease or infection; or

(b) that person cannot or is unable to transit, directly or indirectly, such infection or disease through that person's own act or by another person's act; or

(c) medically and scientifically such person is unable to transmit or infect another person; or

(d) that person does not have at that person's disposal the necessary tool, equipment or parts of the body or thing necessary for the transmission to or conveying to or infecting, another person; or

(e) the person undergoes medical treatment for the sexually transmitted infection or disease as prescribed by a health practitioner and that health practitioner is of the opinion that the person should not be detained.

Examination of females by female health practitioners

63. Where an order is made under this Part requiring the medical examination of any female over the age of twelve years and such female desires to be examined by a female health practitioner, such examination shall, if a female health practitioner is reasonably available, be made by a female practitioner.

Other rights of detained persons under this Part

64. (1) A person detained under this Part shall be entitled to arrange, at that person's expense, for that person's examination by a medical practitioner of that person's choice.

(2) A report of such examination shall be given or furnished to the Director of Health Services, who may act upon it or order further examinations to be made by the first mentioned medical practitioner or any other health practitioner of the choice of the detained person or of the Director of Health Services.

Proceedings to be in camera and reports not to be published

65. (1) Proceedings and enquiries under this Part before a Commission of Enquiry or before a court of law shall be secret and conducted in camera and the records and reports shall be kept in a confidential manner and not be published for public consumption, unless the Minister or court directs in writing otherwise.

(2) Any person publishing such inquiry or records or reports contrary to this section commits an offence and any unauthorised person found in possession of such records or reports commits an offence, and any person convicted for contravention of this subsection shall pay a fine not exceeding one thousand Emalangeni; which fine the Minister may by notice published in the Gazette amend, or shall, in default of payment of the fine, be imprisoned for a period not exceeding six months.

(3) Any person divulging the name of the infected person or divulging the nature of the charge or evidence or the contents of such report, certificate, documents or order respecting the inquiry or proceedings if by so doing the identity of the victim or infected person shall be exposed or divulged or any other matter coming to the knowledge of that person in connection with anything arising out of the proceedings or under this Part that is ikely to injure and expose the identity of the victim or the infected person to an unauthorised person commits an offence and shall be liable, on conviction, to a fine not exceeding a sum of one thousand Emalangeni, which fine the Minister may by notice published in the Gazette amend, or to imprisonment to a period not exceeding six months.

(4) Any person who, without lawful justification or excuse, falsely alleges that a named person has infected another person or the named person is suffering or has suffered from a sexually transmitted infection or disease, including the acquired immuno deficiency syndrome, commits an offence and on conviction, shall be liable to the punishments found in subsection (3) and the conviction or sentence shall not be a bar to further remedies or compensation for damages under civil proceedings.

(5) Any person with sufficient interest, including the Minister or the Director of Health Services who need not have sufficient interest, may start or cause to commence the proceedings mentioned in subsection (1), by, either -

(i) moving an application in the magistrate's court; or

(ii) if not the Minister, requesting or petitioning the Minister to set up such proceedings.

(6) This section shall not apply to publications by the Ministry, a local authority, hospital or such similar body, in the discharge of its lawful duties or to any society or person acting with the authority of the Minister and provided the named persons and entities strictly observe the non violability of the person's rights to personal security and unwarranted attack of the dignity of that person.

Prohibition on publication of advertisements of cures

66. (1) For purposes of this section, unless the context otherwise requires - "advertisement" or "statement" includes any paper, board or bill board, electronic media, graphics, document or book containing any such advertisement or statement.

(2) No person shall publish any advertisement or statement intended to promote the sale of any medicine, appliance or article for the alleviation or cure of any sexually transmitted infection or disease or any disease affecting the generative organs or functions, or of sexual impotence, or of any complaint or infirmity arising from or relating to sexual intercourse.

(3) No person shall publish any such advertisement or statement in any document, board or bill board, paper, newspaper or electronic media or such similar facility or thing.

(4) No person shall, by word of mouth, drawing, conduct, graph or in any other manner, deliver, offer or exhibit such advertisement or statement to the public or public view in any place.

(5) No person shall deliver, offer or exhibit such advertisement or statement to any person in any street, public place or public conveyance or any where and in any place.

(6) No person shall sell, offer, show, receive or send by post, telephone, telex, facsimile or by any electronic medium, satellite or via satellite such advertisement or statement and for purposes of this subsection, for an offence to have been committed, it shall not be necessary to identify or prove the existence of the intended audience, recipient or consumer of such advertisement or statement.

(7) This section shall not apply to publications or statements by -

(a) the Ministry;

(b) a local authority;

(c) a public hospital;

(d) a public body in the discharge of its lawful duties; or

(e) any society or person acting with the authority of the Minister first obtained;

(8) The section shall further not apply to books, documents or papers published in good faith for the advancement of medical science by persons or institutions recognised by the Minister or by any other legislation concerned with the regulation of medical science, research or medical supplies

Provision of facilities of diagnosis and treatment of sexually transmitted diseases

67. The Minister, subject to regulations which the Minister is empowered or authorised to make, and which may deal with the procedure to be followed, the conditions to be followed or complied with and any other matters necessary for the proper carrying out the provisions of this section, may -

(a) provide, in Government or other laboratories, facilities or the requirement for facilities for carrying out bacteriological or other laboratory examination for the purpose of ascertaining whether a person is suffering from or is cured of any sexually transmitted infection or disease, or is free from any such infection or disease in the communicable form;

(b) make provision for, where necessary or where the person is indigent, free treatment, accommodation and maintenance for persons suffering from sexually transmitted infections or diseases;

(c) provide for the provisions in paragraph (b) to be made as far as is practicable in connection with general or isolation hospitals or similar institutions by arrangement with the institution or hospital, local authority or other authority or body concerned.

(d) supply free of charge such remedies or things as may be specified from time to time in the Gazette for the prevention or treatment of infections or diseases, that is, sexually transmitted infections or diseases;

(e) establish and maintain, where practicable, special accommodation for the maintenance and treatment of persons suffering from sexually transmitted infections or diseases or such similar diseases including the acquired immuno deficiency syndrome;

(f) make grants-in-aid, subject to such conditions as the Minister may in each case fix or determine, to local authorities or other public bodies or voluntary societies or associations for the purpose of preventing the spread of or ensuring the proper treatment, care and accommodation of persons suffering from sexually transmitted infections or diseases and other diseases including the acquired immuno deficiency syndrome;

(g) establish home based treatment and out-patient treatment for persons suffering from sexually transmitted infections or diseases and any other disease including the acquired immuno deficiency syndrome.

Protection of boy child, girl child and person from forced sex

68. (1) The Minister shall make provisions to facilitate free medical examination and treatment of any boy - child, girl - child or any person woman who without consent has been subjected to forced sex by any person to ascertain, for the examination part of this Part, whether or not the person subjected to forced sex has been infected with any sexually transmitted infection or disease or any disease mentioned in this Part as a result of the forced sex.

(2) Any person who knowingly and willingly, in any place, force a boy - child, girl-child or woman to have sex with that person commits an offence and shall be tried and punished as prescribed under section 60 and if section 60 is found to be inadequate in any respect, the court shall permit it to be supplemented by any other relevant law and any inconsistency in the laws shall not prevent the court to pass a deterrence or punitive sentence reflective of the objectives of this Part or Act.

(3) The court shall, in addition, order the person found guilty of forcing the other person to sexual intercourse or the person who, whilst forcing the other person, infected the other person, to pay in addition to any other damages the costs of such examinations and treatment.

Regulations respecting sexually transmitted infections and diseases

69. (1) The Minister may make regulations -

(a) prescribing forms, certificates, notices, orders or returns and books of record to be used in connection with sexually transmitted infections or diseases and defining the information to be furnished therein and manner of use by courts, health practitioners and other authorised persons;

(b) conferring powers and imposing duties on relevant officers and other persons, including health practitioners in respect of sexually transmitted infections or diseases;

(c) providing for the effective enforcement of this Part and adapting this Part or any other Part and the procedure thereunder to the understanding and special circumstances of different classes of persons;

(d) respecting to the management, maintenance and inspection of hospitals and other places of treatment including those run by traditional healers;

(e) assigning, where necessary, responsibility and applicability to local authorities, employers and other persons;

(f) respecting the classification, treatment, control and discipline of persons treated or detained in such hospitals or other places of treatment or detention or accommodation and prescribing compulsory work and exercises for such persons where deemed desirable;

(g) prescribing the precautions to be taken by any person suffering from or attending on or having the care or charge of persons suffering from sexually transmitted infections or diseases; and

(h) generally, for the better carrying out of the provisions of this Part.

(2) Regulation made under this section may prescribe offences and penalties.

(3) Any person who contravenes a provision of the Part or regulations made under this Part commits an offence and shall on conviction be liable to the penalties prescribed in this Part, Act or regulations or such penalties as the court may determine, including community work, compensation and restitution.