LUSAKA Magistrate Felix Kaoma has dismissed a case in which a lawyer dragged her ex-lover to court for allegedly unlawfully and negligently doing acts likely to spread infection when the two had sexual intercourse on different dates between March 26 and June 21, this year.
Magistrate Kaoma dismissed the matter for want of Prosecution and accordingly discharged the accused person following an application by defence lawyer Osborne Ngoma yesterday.
In this matter, Naomi Sithole, a lawyer and assistant researcher to a High Court judge, lodged a complaint against Kelvin Milambo in the Lusaka Magistrates’ Court for unlawful and negligently engaging in acts which are likely to spread infection.
She alleged that Milambo between March 26, 2020 and June 21, 2020, unlawfully and negligently did acts which he knew or had reason to believe to be likely to spread the infection of any disease dangerous to her life.
Milambo had pleaded not guilty.
However, when the matter came up yesterday for commencement of trial, Sithole who was in conduct of the matter was not present and another Prosecutor stood in for her.
However, Milambo who was on summons was present.
At this point, Milambo’s lawyer Osborne Ngoma said it was the duty of the complainant (Sithole) to prosecute the matter as the accused was before court at her instance.
He asked the court to dismiss the case for want of Prosecution.
“As the record will show, this is the second time that the complainant has failed to turn up to prosecute this matter. The reasons as to the absence of the complainant are not known as there is no notice of adjournment before this court. Suffice to mention that at the previous sitting the complainant was available,” Ngoma said.
“It is therefore our prayer your honour that this matter be dismissed for want of Prosecution as it appears that the complainant is no longer interested in (prosecuting) this matter. In the interest of Justice, we pray that this matter be dismissed.”
In his ruling, Magistrate Kaoma in the interest of Justice, dismissed the matter for want of Prosecution and accordingly discharged the accused.
According to an affidavit in support of the complaint filed before court, Sithole had stated that she knew Milambo in April 2019 when he was introduced to her by Justin Nkhanga as a potential purchaser of a plot that she was selling in Livingstone, Southern Province.
She stated that from their first meeting in April 2019, Milambo kept in touch with her until when he was ready to pay for the plot and he made the first instalment in January 2020 and the final instalment in February 2020.
Sithole stated that after the final payment, Milambo asked her whether she was available for a relationship and if she was open, to have a child with him and she accepted the proposal.
She stated that prior to their first intimate encounter, she inquired from Milambo about his HIV status and proposed they do a test.
Sithole claimed that Milambo told her that he was negative and that he had just done medical tests for an international job that he had just got with the World Food Program.
She stated that he further told her to go ahead and get tested and that he would not mind if she tested positive as HIV was a manageable disease.
“Following his assurance, we went ahead and had sexual intercourse and continued to have it on different dates between March 26, 2020 and June 21 2020,” Sithole stated.
She stated that towards the end of May this year, Milambo and herself had a misunderstanding which culminated into a physical altercation during which he got his mobile phones.
Sithole stated that after perusing through his phones, she came across a WhatsApp chat between Milambo and his ex-wife in which she informed him about her Antiretroviral Therapy (ART).
She added that in the same WhatsApp chat, Milambo had complained to his ex wife for exposing his illness even if she knew he was sick.
Sithole stated that it was her belief that the illness which Milambo was lamenting to in his WhatsApp chat with the ex-wife, was the same disease condition of which the ex-wife was on ART.
“It is my belief that Milambo knowingly and negligently exposed me to an infection dangerous to my health,” she had stated.