CRI/A/7/88

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

TINY
MACASKILL Appellant

V

REX
Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Mr. Justice B.K. Molai on the 3rd August, 1988.

I have
already dismissed this appeal for the following reasons.

The
appellant had appeared before the Subordinate Court of Mohale's Hoek
charged with contravening S.3(1) of the Deserted Wives
and Children
Proclamation No. 60 of 1959 (as amended), it being alleged that since
1st October, 1980 and at or near Mohale's Hoek
Reserve in the
district of Mohale's Hoek he had wrongfully and unlawfully failed to
provide, with adequate food, clothing, lodging
and medical aid, while
able and legally liable to do so, Puleng Maria Motsoto an
illegitimate child of 'Mamosa Motsoto fathered
by him.

Although
he had pleaded not guilty to the charge the appellant was, at the end
of the trial, found guilty as charged and sentenced
to M60 or 3
months imprisonment the whole of which was suspended for 3 years on
conditions. He was, in addition, ordered to maintain
the said child
at the rate of MAO per month with effect from February, 1982.

2

The
appellant appealed against the decision of the trial court on a long
list of grounds which could, however, be summed up in that
the
decision was bad in law.

It is
significant to mention that at the close of the crown case the
defence applied for the discharge of the appellant on the ground
that
the evidence adduced by the crown had failed to establish a prima
facie case for the appellant to answer. The application
was opposed
by the public prosecutor who contended that the crown evidence did
establish a prima facie case. The The trial court
considered the
matter and came to the conclusion that a prima facie case had been
established against the appellant. The application
for his discharge,
at that stage was accordingly refused.

As it
will be shown in a moment the evidence adduced by the crown witnesses
was unchallenged and it did establish a prime facie
case. The
decision arrived at by the trial court on this point could not,
therefore, be faulted.

The
application for the discharge of the appellant having been dismissed,
the defence,as it was perfectly entitled to do, told the
trial court
that in that event it was closing its case without adducing any
evidence on behalf of the appellant. The court had,
therefore, only
the crown evidence to rely upon for the decision in this case.

Briefly
stated, the evidence adduced by the crown was that on 5th May, 1979
'Mamosa and the appellant were lovers when they started
indulging in
extramarital sex, as a result of which the former became pregnant. In
June, 1979 'Mamosa told the appellant that she
had missed her
periods. The appellant then gave her some money with which to go to a
medical doctor for examination which, according
to 'mamosa, confirmed
that she was pre­gnant.

3

Although
she conceded that until April, 1979 she was having a love affair with
another boy by the name of China at the same time
she was in love
with the appellant, 'Mamosa told the court that she never had sexual
intercourse with China. In fact China had
returned to his piece of
work in the Republic of South Africa in April 1979. She could not,
therefore, hove hod sexual intercourse
with him in May, 1979.

After she
hod became pregnant 'Mamosa reported her pregnancy by the appellant
to her sister and mother. Indeed, on 19th February,
1980 she gave
birth to a baby girl, Puleng Maria Motsoto. The appellant
subsequently admitted, in the presence of the parents of
both
parties, that he was the one who had impregnated 'Mamosa. The parents
then decided that the appellant and 'Mamosa should marry
each other.

On 2nd
February, 1981, 'Mamosa and the child,' Puleng Maria Motsoto, were
collected to the appellant's home by the appellant's own
mother.
After her arrival at the appellant's home 'Mamosa was advised that
the appellant had previously married another woman.
The appellant in
fact entered into a civil marriage with that other woman whilst
'Mamosa was still staying at his parental home.

It would
appear that the parents of 'Mamosa were against her concluding a
polygamous marriage with the appellant. I am saying this
because
after they had dis­covered that the appellant was already a
married man the parents of 'Mamosa demanded her return.
'Mamosa and
the child were accordingly returned to her maiden home.

According
to the crown evidence 'Mamosa was not employed. The appellant who was
employed at Jandrel's shop and, therefore, able
to maintain the
child, Puleng Maria Motsoto, contributed nothing towards its
maintenance which had since been the burden of 'Mamosa's
mother.

4

Consequently
the appellant was charged as aforesaid.

As has
already been mentioned earlier, the defence adduced no evidence to
gainsay what the crown witnesses had told the court in
this case. In
the cir-cumstancea, the trial court considered the only available
evidence led by the crown witnesses and found that
during May, 1979
the appellant and 'Mamosa did have sexual inter­course as a
result of which the latter fell pregnant and gave
birth to the child,
Puleng Maria Motsoto, on 19th February, 1980. The appellant was,
therefore, the natural father of Puleng Marie
Motsoto.

That
being so, the trial court concluded, and rightly so in my opinion,
that the duty of maintaining the child,Puleng Moris Motsoto,
vested
with not only 'Mamosa but the appellant as well. As she was
unemployed 'Mamosa was unable to adequately maintain the child
who
had become the burden of her own mother. On the other hand the
appellant was employed. He had, therefore, the ability to maintain

his child.

Be that
as it may, the appellant's ability to maintain his child, Puleng
Maria Motsoto, was in fact a legal presumption in terms
of the
provisions of sub-section (2) of section 3 of the Deserted Wives and
Children Proclamation No. 60 of 1959. True enough such
a pre­sumption
was rebuttable. The appellant had, however, done nothing to rebut
that presumption.

On the
evidence before the court, there could be no doubt that although
legally liable and able to do so the appellant did not maintain
his
child, Puleng Maria Motsoto. Failure to do so in the circumstances of
this case rendered the appellant guilty of contra­vening
S. 3(1)
of the Deserted Wives and Children Pro­clamation, supra. The
section reads:

"3(1) Any person legally liable to maintain any other person
who, while able to do so, foils to provide the person to be
maintained with adequate food, clothing,

5

lodging and medical aid, shall be guilty of an offence."

The
suspended sentence imposed by the trial court was, if anything, on
the lenient side. The appeal against such a sentence was
totally
devoid of merit. likewise I found nothing unreasonable in the rate of
maintenance ordered by the trial court.

In the
circumstances, I had no alternative but to dismiss this appeal,

B.K.
MOLAI

JUDGE.

3rd
August, 1988.

For
Appellant : Mr. Tsotsi

For Crown
: Miss Nku.