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CRI/A/35/93

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

TSEKO
NTLALOE Appellant

vs

R E X
Defendant

JUDGMENT

Delivered
by the Honourable Mr, Justice T. Monapathi on the 16th day of March
1994

This is
an appeal from the magistrate Court for the district of Berea under
case no. CR 287/92. The accused in the court & quo
was charged
with the offence of having contravened Section 3 of Deserted Wives
and Children Proclamation No. 60 of 1959. In that
upon or about the
period between November 1991 and April 1992 and or at near Ha Mphanya
in the district of Berea the said accused
wrongfully and unlawfully
and being able to work failed to maintain his wife named Matsotang
Ntlaloe and child Tsotang Ntlaloe
aged 14 months with food and
clothing as required by the Statute, He was found guilty on the 31st
July, 1992.

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The
Appellant was represented by Advocate Mosito while the Crown was
represented by Miss Nku in this appeal on the 16th February
1994. The
record reveals that there were two witnesses for the Crown namely
'Matsotang Ntlaloe and 'Mateboho Rants'o, It will appear
that
'Mateboho Rants'o is the mother of the complainant, the complainant
being the wife of the Appellant. There were two witnesses
for the
defence namely Appellant himself and Esther Ntlaloe. I have indicated
that the Appellant was convicted as charged. The
Appellant duly noted
an appeal to this Court on the 17th this day of August 1992. The
grounds of the appeal are the following:-

1. The
   learned magistrate misdirected himself in law by convicting
   Appellant without even ascertaining the existence of menserea
   for
   committing the offence under Section 3 of the Proclamation,

   
   

2. The
   learned magistrate misdirected himself by holding that Appellant had
   not been supporting the complainant and the said child
   prior to the
   parting of the Complainant as there was no proof beyond reasonable
   doubt justifying such a finding.

   
   

3. The
   learned magistrate misdirected himself by not inquiring into the
   Appellant's financial obligations

   
   

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before making an order of maintenance.

4. The
   learned magistrate misdirected himself by holding that Complainant
   was in need of maintenance in the amount ordered more particularly:

   
   

1. There
   was no proof proofing beyond reasonable doubt that the Complainant
   was in need or destitute.

   
   

2. There
   was no proof beyond reasonable doubt that the Appellant has
   deserted Complainant.

   
   

4. Learned
   magistrate erred in law by not stating the reasons for the
   imposition of his sentence at the time of imposition thereof.

   
   

The
Learned Counsel Mr. Mosito got into well motivated argument on behalf
of the Appellant. It will be noted that the Appellant
had been
unrepresented in the court a quo. It is also to be noted that, at the
stage when the Accused was asked to address the
Court, as after the
leading of the two defence witnesses he elected to remain silent.
Again he still remained silent when he was
asked to make a statement
in mitigation.

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What
becomes very important at this stage is this cardinal fact that the
learned magistrate does not seem to have made a reasoned
statement of
how he arrived at his conclusions, which witness did believe and on
which aspect? What is it that impressed him in
the Crown's case or in
the defence case? This is totally lacking, I am saying that this is
cardinal to the extent that after Mr.
Mosito's address, Miss Nku,
most wisely picked on this aspect of the absence of the judgment of
the learned magistrate. To submit
that in the absence of a judgment
this Court was disabled to even consider the merits of Mr. Mosito's
argument. Indeed it is mandatory
for the learned magistrate to have
made such a judgment in the manner I have indicated. This means
therefore that this Court would
not be able to look into any aspect
of this case. Whether Mr. Mosito's grounds for objection as contained
in this Notice of Appeal
were valid or not Miss Nku submitted that
this was beyond this Court to judge. Miss Nku made her point in such
a strong manner
that she felt that she herself would not even be able
to comment in anyway, in response to what Mr. Mosito has said in his
argument.
I thought this situation was very unfortunate. It was very
unfortunate not only because I would have been inclined to allow the

appeal in favour of the Appellant, but because I was bound not to
investigate this matter at all. I agree with both Counsels that
there
would be no basis upon which I would look into these proceedings to
order this way or that way, as regards

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the
merits.

One thing
that exercised my mind very seriously was the type of order that I
would have to make. By this I mean whether it would
be wise to refer
the proceedings to this Magistrate who presided over this matter, I
happen to know that this magistrate would
not be easily available. In
that regard Counsel suggested that I would have to impose a time
limit as to when and within what time
magistrate would have to react
in rendering a judgment. I thought that this brought in a great deal
of inconvenience and impracticability.
It would be uncertain as to
whether this magistrate would react if at all he decided to react. I
greatly suspected that this would
be throwing this appeal to dogs or
these proceedings into a situation where they would languish without
any form of response,

One must
consider that this proceedings will be hanging over the
Accused/Appellant over this whole time. That is where the magistrate

would be asked to render judgment. I felt it was unjust and unwise. I
thought that I had to do something that is very certain in
itself.

I
therefore order that the proceedings are quashed. The Director of
Public Prosecutions is given leave to instruct that this charge
be
started de novo. I have indicated that I was

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influenced
by the fact of the uncertainty of throwing back these proceedings to
a situation where it would be uncertain as whether
they would be
attended to, I direct that any magistrate can deal with this charge
when it is brought afresh as I have ordered.
This I did in the
interest of justice and certainty.

T.
MONAPATHI

Acting
Judge

16th
March 1994

For the
Appellant ; Mr. Mosito

For the
Defendant ; Miss Nku