The court accepted expert testimony which stated that HIV is an "incurable and fatal disease".
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EDITOR’S NOTE: This article was updated on 7 October 2026 to reflect that Leon Santos Conga’s conviction and sentence was set aside after his appeal was granted by the Pretoria High Court.
Pretoria High Court Judge Omphemetse Mooki ruled on 2 December 2025 that the regional court “did not explain the process or implications” of certain procedures to Conga in the court proceedings.
It specifically referred to Conga’s plea explanation (Section 115 statement) and the subsequent establishing of undisputed facts, under Section 212B, in the pre-trial phase.
“The record does not support the submissions on behalf of the State regarding how the Regional Court dealt with the section 212B proceedings. There is no mention of the Appellant admitting paragraph 5 of the notice. There is no mention of the Regional Court requesting the appellant to confirm what the Appellant’s attorney said to the Regional Court. It is not the case that the Regional Court did not need to explain the process or implications of the section 212B process to the appellant. This is precisely what the statute demands. The ruling by the Regional Court could not constitute compliance with what is required of a court where section 212B is engaged,” the judgment reads.
“The court held it against the appellant that the appellant admitted paragraphs 1 and 5, but then changed his evidence, denying what the Regional Court said were ‘facts placed beyond dispute’.”
Mooki said the regional court should have investigated if the facts were really beyond dispute.
“There was no such investigation. The Regional Court did not, contrary to the submissions for the state, enquire from the appellant whether the appellant understood his rights and the implications of the section 212B procedure. The Regional Court did not inform the appellant of his rights that could be implicated by the procedure. The Regional Court did not inform the appellant of the implications of the procedure. The Regional Court, equally, did not request the appellant to declare whether the appellant confirmed answers that his attorney gave to the court.”
In a landmark verdict that has since been set aside, a former South African National Defence Force (SANDF) member, Leon Santos Conga, was convicted of attempted murder and rape for deliberately infecting his former partner, Antoinette Ndishishi, with HIV.
Sitting at the Pretoria Magistrate’s Court, Magistrate Fikiswa Ntlati delivered the verdict on Tuesday, 11 June 2024.
Rape and attempted murder
Ntlati found Conga guilty of two charges, one of rape and another of attempted murder in failing to disclose his HIV status to Ndishishi.
Ndishishi, who was represented by AfriForum’s Private Prosecution Unit, was infected by Conga despite his knowledge of his HIV status since 2007.
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News24 reported that medical records proved that the accused tested positive for HIV at a SANDF sickbay in Phalaborwa in October 2007.
“Further laboratory testing confirmed his positive status.”
According to AfriForum, after years of trying to obtain Conga’s medical records, the unit eventually succeeded in securing the conviction by obtaining Conga’s medical records, which revealed his awareness of his status.
Ntlathi asserted that there was evidence that the former SANDF member knew about his status as well as its repercussions.
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“He knowingly failed to disclose his HIV-positive status to his former partner, who is the complainant in this matter.
“He thereby misled the complainant into engaging in sexual activities, knowing full well she was HIV-negative at the time,” Ntlathi added.
‘HIV is an incurable and fatal disease’
The victim acknowledged consenting to unprotected sex with Conga. However Ndishishi said she only consented to sex under the assumption that he was HIV negative.
The court accepted her testimony that she would not have agreed to sex if she had known the truth.
Moreover, the court also accepted expert testimony which stated that HIV is an “incurable and fatal disease”.
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In accepting the victim’s argument Ntlati said Ndishishi was a credible witness who made a good impression to the court by answering all questions directly and clearly.
“Despite her testifying after at least four years since the incident took place, she gave a clear and a detailed account of what transpired. She didn’t contradict herself on any aspect. She remained consistent and unshaken and did not deviate from her version even during cross-examination. She was credible, and in the opinion of this court, no criticism can be levelled against her,” Ntlati added.
Justice served on HIV case
Furthermore, Ndishishi, who has been seeking justice since 2018, expressed relief and gratitude towards the Private Prosecution Unit.
“I feel like I got justice because he was found guilty on both counts, attempted murder and rape. Honestly, hearing the words of the magistrate convict him and find him guilty, I actually cried.”
Adv. Gerrie Nel, head of the Private Prosecution Unit, hailed the verdict as a significant development in understanding consent.
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“It has demonstrated that the establishment of the Private Prosecution Unit is critical to ensuring justice for victims of crime.”
The case has been postponed to August 7, 2024, for sentence argument.
Ndishishi shared hopes of her case inspiring other women to come forward and report similar incidents, despite the fear of stigma and discrimination.
“They shouldn’t be afraid. I believe such people need to be locked up.”
