Violent Prison Sex

Mpho Mokwape | Monday January 11, 2016 18:00

 

The convict, Patrick Botlhasitse, who was slapped with a 12-year sentence by Justice Barnabas Nyamadzabo of Francistown High Court in 2012,  appeared before a three-man Court of Appeal (CoA) bench on Friday. Botlhasitse said the trial had failed in convicting him despite agreeing with most of his testimony.

He wants immediate acquittal and discharge. His lawyer, Reneetswe Rabasotho submitted that evidence led before court during trial was sufficient to grant acquittal and discharge as his client acted purely to protect himself from the deceased as he attacked him demanding anal sex commonly known as ‘maotwana’ in prison corridors.

“My client testified that at the material time, the deceased demanded ‘maotwana’ from him and when he refused, the deceased replied saying he was playing games and then took out a knife, pinned him down and strangled him trying to threaten or stab him to overcome his resistance to the anal sexual intercourse,” he said. Rabasotho argued that according to his client, during the struggle the knife hit the side of the bunk bed and that was when he grabbed the deceased’s hands and took the knife away, ultimately stabbing the deceased with it.

He submitted that as such it was for the court to determine whether the trial court erred in finding that his client had not acted in self-defence on the analysis of the evidence. “The testimony of the accused at the time which found some material support in the prosecution case through one witness was readily accepted by the trial judge as being possibly true and as such it should have acquitted and discharged him since he was entitled,” he argued.

He submitted that for the trial judge to treat the defences of provocation and self-defence as one and as of the same effect whilst the same have different requirements, it had erred.

Rabasotho explained provocation and self-defence were two distinct and separate defences as provided for under section 205 and 16 of the Penal Code respectively, arguing that where provocation is a partial defence, self defence was a total defence as also provided in section 4 (2) of the constitution.

“By adopting an impermissible or improper approach in dealing with mutually distinct and separate defences as being intertwined was more discernible hence we seek acquittal,” he said. Countering the submissions, Matlhogonolo Phuthego of the Directorate of Public Prosecutions (DPP) said the appellant had raised that he was provoked and that he had to stab the deceased. He said even most of the eyewitnesses had testified and proven the state’s case that the appellant stabbed the deceased even when he had a chance to get out.

“The argument of self-defence alone could not stand because the appellant had told the court that he was provoked by the deceased for violently wanting sex from him and that was reason enough for him to stab him to death despite having the chance to walk away,” he submitted. Meanwhile, the deceased Jayson Ndeke was imprisoned for a rape offence at the time of his death.  Botlhasitse stabbed him to death on or about May 20, 2011. According to court documents, the deceased was stabbed at Mahalapye State Prison, at around 10pm when the prisoners were locked up in their cells.