Prisoner Freed In �Anal Sex� Killing

Mpho Mokwape | Monday February 15, 2016 16:13

 

This, however did not exonerate Patrick Botlhasitse who was still locked up to serve another sentence for a different matter. 

The successful appeal overturned a 12-year sentence by Justice Barnabas Nyamadzabo of Francistown High Court in 2012. Botlhasitse had approached the CoA demanding immediate release on contention that he was acting in self-defence after the deceased Jayson Ndeke demanded anal sex commonly known as ‘maotwana’ in prison circles.

When setting the convict free, Lord Alistair Abernethy said it was recognised by the trial judge that in law, self-defence was a total justification for a killing and that the result should have been the acquittal of the accused.

He explained that there was no suggestion that Botlhasitse had any malicious intent when he stabbed the deceased. Abernathy said with regard to the defence of provocation, it was only a partial justification, the effect of which would be to reduce the crime from one of murder to manslaughter in terms of the penal code. “The trial judge erred in two respects. First, the defence, according to evidence put before court, had not suggested that provocation was a defence, which afforded the appellant total justification for his conduct.

“Secondly, what he said in his judgement was both contradictory and incorrect. Only self-defence does that and a total legal justification does not reduce a charge of murder to manslaughter. It results in acquittal and discharge,” he said.

He said the judge erred in relation to the consequences of self-defence, more so that the prosecution had failed to negate the appellant’s argument.

Lord Abernathy further said the fact that the trial judge’s conclusion that the prosecution had failed to negate the appellant’s defence, he should have been acquitted and discharged.