In Botswana the Court of Appeal has ruled in Lejony v The State (2000) 2 BLR 145 C.A. (full bench), that the offence of defilement has been created for the protection of young girls. Amissah JP held that: “In the end result, it was to the court which tried the charge that the statute conferred the duty of finding whether the person charged had reasonable cause to believe and did in fact believe that the victim was of or above 16 years. The fact that the couple had been living together over a period of time or that the victim consented to the act charged, was really irrelevant. The law was enacted to protect girls below the age of 16 years, whether they consented to sexual intercourse or not. The Magistrate’s Court found, judging from the evidence and the looks of the victim, that Lejony could neither have had that belief, nor did he in fact believe, that the victim was 16 years or above. I have no reason to disagree with that finding. Accordingly, the appeal against conviction on this ground is dismissed.” What this means is that where a person had reasonably believed the complainant to be an adult, then such a defence is completely valid. This could be the physical appearance of the young person, coupled with misrepresentation as to the young person’s age, and any other factors in an open list. What the accused is not required to do in terms of existing law is to ask the young person to produce his or her identity document before having sexual intercourse with such young person. Yet in having sexual intercourse with a girl or boy who does look young, the adult would be taking a risk, and it is up to such an adult to take necessary precaution to satisfy himself or herself as to the majority status of the young person. In the Botswana Court of Appeal case cited above, the Court went on to state as follows at paragraph 8: “The fact that the complainant in a case of defilement is a victim, on account of her age, is one of the factors to be weighed when considering whether the section 147(5) defence can prevail. That is why the court must be satisfied not only that the perpetrator had reason to believe that the victim was of or above sixteen, but that he did in fact so believe. This leaves no room for an adult man to take a chance on the age of a prospective young partner encountered at a social occasion or elsewhere”. In another Botswana case, Nganunu CJ in Manewe v The State (2005) 1 BLR 276 at page 280, held that the size and physical development of a girl could provide reasonable grounds for belief that she was over sixteen. Whether the accused did in fact believe that, was a question of credibility to be decided by the court. Section 70(3) of the Criminal Code in Zimbabwe in this respect makes it clear that “the apparent physical maturity of the young person concerned shall not, on its own, constitute reasonable cause for the purposes of this subsection.” Thus, one cannot simply plead apparent physical maturity without more. What emerges is that for the statutory defence to hold, two things must be established: 1. That the accused had reason to believe that the victim was of or above sixteen, and 26