CRI/A/17/81.

IN THE
HIGH COURT OF LESOTHO.

In the
matter of :

THAKALIOLI
RAMOEKETSI Appellant

V

REX

Respondent

REASONS
FOR UPHOLDING THE APPEAL

Filed by
the Hon. Mr. Justice M.P. Mofokeng on the 2nd day of August. 1982.

The
appellant was charged in the Subordinate Court of Maseru with
contravening the provisions of S. 3(1) read with (4) of the Deserted

Wives and Children Proclamation 60 of 1959 as amended.

The
complainant stated in her evidence that she left the accused in 1964.
During their separation she never had intercourse with
him for
sixteen years. However, in her own words she had different children
with different men. She refers to them as her friends.
Initially
those men on their own initiative, supported these children but
eventually they stopped. She then brazenly says, and
these are her
own words: "I want that accused be ordered to maintain these
three children because I wanted to be helped or
maintained by the men
who I was in love with as a result of his negligence."

The
learned magistrate must have realised that there was no basis in law
to have criminally charged the appellant. He was accused
of not
supporting adulterine children. Surely through the complainant
herself, the Crown had totally not proved its case. The complainant

had invoked criminal proceedings

2

against
the accused as a purely punitive measure. The Court does not allow
that (see Khosi v Rex. 1976 LLR. 161).

As for
the order of maintenance for the complainant personally, it is not
quite clear why it was made. She clearly informed the
Court that she
lived in adultery proof of which was the birth of a number of
children. This act on her part had not been forgiven
or condoned by
the accused. In terms of the clear unambigious provisions of S, 10(1)
of Proclamation 60 of 1969 she was not entitled
to that order of
maintenance.

In these
circumstances the appeal is upheld and it is ordered that the appeal
deposit be refunded to the appellant.

Mr.
Peete, Counsel for the respondent, very fairly in my view did not
support the conviction.

JUDGE

For the
Appellant : Mr. Maqutu

For the
Respondent : Mr.