CRI/A/14/81IN THE HIGH COURT OF LESOTHO IN THE APPEAL OF :ISHMAEL RALIENYANE Appellantv.REX RespondentREASONS FOR JUDGMENT
on the 14th day of September1981.For the Appellant : D.Molyneaux For the Crown : E. MugulumaThis 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 be2/ 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. ROONEYJUDGE 14th September, 1981.Attorney for the Appellant: Webber, Newdigate & Co. Attorney for the Crown : Law Office.