THE Lusaka Magistrates’ Court has been asked to dismiss a case in which a lawyer has complained against her lover for allegedly exposing her to a health risk through sex.
In this case, the lawyer Naomi Sithole has complained against Kelvin Milambo that he knowingly and negligently exposed her to an infection dangerous to her health.
Particulars of offence are that between March 26, 2020 and June 21, 2020 in Lusaka, Milambo unlawfully and negligently did acts which, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to Ms. Sithole’s life, contrary to Section 183 of the Penal Code, Chapter 87 of the Laws of Zambia.
When the case came up yesterday for commencement of trial before Magistrate Felix Kaoma, defence lawyer Osborne Ngoma applied to the court to dismiss the case because Ms. Sithole, who works as assistant researcher to High Court Judge Dancewell Bowa, was not present to prosecute her matter, which she started by way of a complaint in line with Section 90 of the Criminal Procedure Code.
Mr. Ngoma said Ms. Sithole was present at the previous proceedings when the case was adjourned and that she knows well how matters are adjourned if there is a circumstance that has arisen.
“In this case we don’t have reason as to why the complainant is not before court. Under the circumstance we inevitably apply that this matter be dismissed for want of prosecution as we can’t be left to assume on behalf of the complainant,” he said.
In his ruling Mr. Kaoma said when the complainant is absent the court has discretion to dismiss the matter but that since it was the first time Ms. Sithole was absent, he gave her a benefit of doubt and adjourned the case to November 11, 2020.
According to Ms. Sithole, she knew Milambo in April 2019 when he was introduced to her as a potential buyer of the plot she was selling in Livingstone.
In her affidavit in support of summons, Ms. Sithole said after paying the second and final instalment for the plot, Milambo asked her if she was available for a relationship and she accepted.
She said he later asked her to have a child with him and she accepted his proposal. Ms. Sithole added that prior to their first intimate encounter, she asked him about his HIV status and proposed that they go for testing.
She said Milambo then told her that he was negative and that he had just done medicals for an international job he had just got with the World Food Pogramme.
Ms. Sithole said Milambo further told her to go ahead and get tested and that he would not mind if she tested positive as HIV is a manageable disease.
She said following his assurance, they had sex on various occasions between March 26 and June 23, 2020.
Ms. Sithole said towards the end of May this year, she and Milambo fought after which she got his mobile phones.
She said after going through the phones, she came across WhatsApp chats between Milambo and his former wife in which the latter informed him about her antiretroviral therapy (ART) treatment.
She said in the same WhatsApp chat Milambo lamented that his former wife was not in order to expose his illness even if he were sick.
Ms. Sithole said it is her belief that the illness which Milambo was lamenting about was the same for which his former wife was on ART.
Author
