CRI/A/14/81
IN THE HIGH COURT OF LESOTHO
IN THE APPEAL OF :
ISHMAEL RALIENYANE Appellant
v.
REX      Respondent
REASONS FOR JUDGMENT

on the 14th day of September
1981.
For the Appellant : D.Molyneaux
For the Crown : E. Muguluma
This appeal was disposed of on the 4th of August,
1981. It was not opposed by the Crown.
The accused was convicted of failing to maintain his
illegitimate child Lineo Taeli contrary to sec. 3 (1) of
the Deserted Wives and Children Proclamation 1959 (as
amended by Order No. 29 of 1971), He was sentenced to
pay a fine of M60 or in default 6 months imprisonment,
which sentence was suspended for 3 years on condition that
the accused is not convicted of the same offence during the
period of suspension. In addition, accused was ordered
to pay M38 to the plaintiff as the monthly maintanance
of the child with effect from the 1st November, 1980.
I assume that this latter order was made under the
provisions of Section 3 (a) of the amended Proclamation.
When giving evidence at the trial the accused told the
Court that he earned M60 per month.
The condition upon which the sentence was suspended
was not valid as it is not possible for a person to be
2/       convicted of    

-2-
convicted of the same offence twice, unless the first
conviction is quashed.
As was said by Cotran C.J. in Phillips v. Rex 1980
(1) L.L.R. 69 at 71
"It was the duty of the trial magistrate
to conduct an inquiry, either verbally or by
way of affidavit, to enable him to determine
fairly the amount, if any, that the appellant
ought to pay. The magistrate should bear in
mind that both the appellant and the complainant
are under a duty to maintain the child"
See also Lamb v. Seck 1974 (2) S.A. 670.
I accordingly allowed the appeal against sentence
and against the order for the payment of maintenance and
I directed that the case be remitted to the trial magistrate.
He is required to re-assess both asentence and the maintenance
payable by the appellant having regard to all the circumstances
including the means of both parties. The magistrate may
hear additional evidence either on behalf of the Crown or
the accused.
F.X. ROONEY
JUDGE
14th September, 1981.
Attorney for the Appellant: Webber, Newdigate & Co.
Attorney for the Crown : Law Office.