CRI/A/61/86

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

MOHAPI
MONNE. Appellant

v

R E X
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 27th day of April, 1988.

The
Appellant herein appeared before the Subordinate Court of T.Y. and
pleaded not guilty to a charge of contravening 5.3(1) of
the Deserted
Wives and Children Proclamation No.60 of 1959 (as amended by Order
No. 29 of 1971), it being alleged that since July
1985 and at or near
T.Y. reserve in the district of Berea, he had unlawfully and
intentionally failed to provide food, clothing
and medical aid to his
wife 'Mahlaoli Monne and their 23 months old child, Hlaoli Monne,
whilst legally liable and able to do so.

At the
close of the trial, the appellant was found guilty as charged and
sentenced to a term of three (3) months' imprisonment,
the whole of
which was suspended for three (3) years on conditions. In addition he
was ordered to pay a maintenance fee at the
rate of M80 per month
with effect from 30th April, 1986.

The
appeal is against both the conviction and sentence.

Only one
witness who was not even cross-examined testified in support of the
crown case. The defence decided

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to remain
silent and close its case without leading any evidence. The trial
court had, therefore, only the crown evidence to rely
upon For the
decision in this matter.

Briefly
the evidence heard by the court was that adduced by 'Mahlaoli Monne,
who told the court that she and the Appellant who was
working in the
mines of the R.S.A., got married to each other accor­ding to
Sesotho Law and Customs in 1984. She was, therefore,
the wife of the
Appellant. There was only one minor child born of the marriage.

Prior to
July 1985 the appellant used to give complainant M80 a week as
maintenance for her­self and the minor child of the
marriage.
Since July 1985 the appellant, who was still working in the mines of
the Republic of South Africa, had not been affording
them any
maintenance at all. Consequently he was charged as aforesaid.

There can
be no doubt, on the evidence, that the appellant is lawfully married
to the complainant, 'Mahlaoli Monne. He is therefore,
her husband and
the father of the minor child of the marriage. That being so, he is
legally liable to maintain the com­plainant
and the minor child.
Indeed, the appellant who, according to the evidence, is working in
the mines of the Republic of South Africa,
has all along, been
maintaining the complainant and the minor child of the marriage at
the rate of M80 per week. There is no suggestion
that the complainant
is working. She has in fact returned to her maiden home presumably as
a result of the Appellant's failure
to maintain her and the child.

Although
legally liable and able to maintain the complainant and his minor
child, the appellant has since July 1985, failed to provide
them with
maintenance. He has, therefore, contravened the pro­visions of
S.3(1) of the Deserted Wives and Children Proclamation,
supra. That
being so, the trial court

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has, in
my view, correctly convicted and sentenced him.

As
regards the order of maintenance it is significant to bear in mind
that prior to July 1985 the appellant used to maintain the

complainant and the minor child of the marriage at the rate of M80
per week. There is no suggestion that appellant's cir-custances
have
changed so as to be unable to afford this amount per week.
Consequently I find nothing unreasonable in the trial magistrate

ordering, as he did, that the appellant should maintain his wife and
child at the rate of M80 per month (not per week).

I would,
in the circumstances dismiss this appeal.

B.K.
MOLAI

JUDGE

27th
April, 1988.

For
Appellant : Mr. Khasipe

For
Respondent : Miss Moruthoane.