Gaborone Chief Magistrate Lot Moroka says that there is no law in Botswana which punishes the deliberate spread of HIV\AIDS.
Moroka said Section 184, under which Michael Morwamang was charged, did not specifically mention HIV/AIDS but only says ‘any other dangerous disease to life’.
Moroka said this when discharging and acquitting Morwamang from charges of having unlawful and unprotected sex with a 24-year-old woman on July 7, 2005 whilst he knew that it was likely to spread HIV\AIDS.
Dismissing the charges against Morwamang, Moroka said that the state had failed to prove whether or not a condom was used even though it had been proven that there was unlawful sexual intercourse and that there was no consent from the complainant.
There was proof that the accused person knew that his conduct was likely to spread the infection that was dangerous to life.
Further, he said it was evident that the accused person was on anti retro viral treatment and that he had had sex with the complainant.
Besides all this, Moroka said that there was inconsistency in the evidence of the complainant and the second state witness.
The complainant’s evidence, he said, was that when she woke up and found the accused on top of her, she was not surprised or shocked but that a friendly discussion took place between them.
This, he said, is highly inconsistent because one would have expected that she would be shocked to find a stranger having sex with her but that she did not express that but only asked soft questions such as who he was and why he was having sex with her.
The complainant, he said, expressed herself as someone who had vast experience in sex and that she could tell whether a condom was used or not and that if she knew from her experience that no condom was used why then did she ask Mmapula, her friend, if a condom was used or not?
Though the Court could not dispute her experience, the complainant’s knowledge was not based on seeing but on feeling.
To this, he said that there was no doubt as to whether a condom was used or not and that the prosecution had failed to prove their case beyond doubt.
Lastly, Moroka warned Morwamang that a man in his condition should not act irresponsibly in order to contain the spread of the disease which can expose him to secondary infection.
He also said that he understood that alcohol had played a critical role on that day as the three behaved recklessly and that it was a big advantage to Morwamang because the complainant had tested negative.
Ookeditse Maphakwane appeared for Morwamang.
