Makuto (“Appellant”) was convicted of rape. Pursuant to Section 142(2) of the Penal Code of Botswana, he was required to undergo a mandatory HIV test before being sentenced. He tested positive but it was not clear that he was aware of his HIV positive status prior to this test, including at the time of the rape. Under Section 142(4)(a), a person convicted of rape who proves to have HIV is subject to a minimum of 15 years imprisonment if he was unaware of his status at the time of the offence and under Section 142(4)(b) a minimum of 20 years if he was aware. This compared to a minimum sentence for rape by a non-HIV positive person of 10 years. Appellant was sentenced to 16 years imprisonment and 2 strokes of the light cane. He appealed on the grounds, inter alia, that it was discriminatory and contrary to Section 15 of the Constitution to provide for heavier penalties on the basis of an offender’s HIV status, and further that Section 142(4) was unjust and unfair in presuming that an offender who tested HIV positive after conviction must have transmitted the virus to the victim. He alleged that mandating a harsher sentence on the basis of a person’s HIV status is discriminatory on the ground of disability, and thus unconstitutional. Section 15 of the Constitution of Botswana prohibits discrimination by a public authority.