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CRI/A/14/91

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of:

KENETE
KOTSANE Appellant

v.

REX
Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice W.C.M. Maqutu Acting Judge on the 17th day of
March.

This is
an appeal from the judgment of the Magistrate for the district of
Leribe, In that case Appellant was convicted of failing
to maintain
his wife and children under Section 3(1) of the Deserted Wives and
Children Proclamation No.60 of 1959 (as amended)

I there
has been an unconscionable delay in prosecuting this matter. The
problem is that accused

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was
charged with failing to maintain his family on the 30th June, 1988
but the matter was heard on the 22nd October, 1990. Was this
what the
legislature intended?

Maintenance
claims are basically civil claims but to prevent destitution, the
legislature has introduced a criminal sanction. The
penalty not
exceeding M200.00 or 1 year was still by standards of 1959 very
harch. It was intended to force people to seek employment
in order to
meet their maintenance obligations.

If this
matter had proceeded as a civil claim in 1988 summons would have been
served by registered post and a default judgment been
obtained. See
Sections 7 and 8 of the Deserted Wives and Childrens' Proclamation of
1959. It is my view that the accused should
have been charged
criminally of failure to maintain his family in 1988 and on
conviction be put under an obligation to maintain
in future. My
reason for saying so is that a maintenance order which formed part of
an accused sentence could not date back to
a period two years before
the date of conviction. See section 3A of the Deserted Wives and
Children

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Proclamation
of 1959. of 1959 am amended in 1977. The other reason for saying so
is that two years after 1988, the accused might
have been maintaining
his family. It, therefore, would not be fair to treat him as if he
was still engaged in the criminal activity
of neglecting his family
when he has mended his ways.

In this
case (now on appeal) the distinction between what happened in 1988
and in 1990 was blurred. The Crown did not even realise
that it ought
to put its case properly before court and that it had an onus of
proof. The rebuttable presumption that the accused
had the means did
not relieve the Crown of setting its case properly and ignoring that
the accused had been retrenched. Sections
3(1) and (2) ought to be
read along with Section 3A because the Court does not only convict
but it is expected to make a maintenance
order that has an effect of
a civil judgment. It is, therefore, not only part of the burden of
the Crown to show that the man is
able to maintain but it has to show
what his actual means are. In this respect, the prosecution can
subpoena the accused employer
to enable the court determine the
Accused's income.

There is
no evidence that in these proceedings

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any
reference was made to the Deserted Wives and Childrens"
Proclamation as amended. This is clear from the fine of M900.00
when
the law lays down a maximum fine of M200.00. It will be observed that
the court is obliged in terms of Section 3A(2) in determining

maintenance to :

"have regard to the record of proceedings at the trial or such
further evidence as may be necessary either upon affidavit
or
verbally

By this I
understand that the trial court is obliged to conduct the maintenance
proceedings as an enquiry and to seek such other
evidence as might be
necessary as to the accused's means. It is of course the duty of the
prosecution to put such evidence before
court. This, does not exempt
the Court from duty of seeing to it that such information is
available. Cotran C.J. in Thabang Tsooana
v. Rex 1978 LLR 218 in a
similar case said ;

"I am afraid some magistrates are not really applying themselves
to this aspect of trial and quantums of maintenance are arbitrarily

arrived at."

The view
that I take is that the Crown did not really attempt to prove the
accused's failure to maintain in 1990. It thought because
the accused
had

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failed to
maintain his family two years before that was enough. In the light of
the aforegoing, I could not consider confirming
conviction and
sending the case to the court below for the proper determination of
the sentence and maintenance.

The
appeal is, therefore, upheld. The Appellant is found not guilty and
is discharged. His appeal deposit is to be refunded,

I need
only add that because maintenance is a continuing obligation, this
judgment does not apply for the period beyond October,
1990. If he is
in default of maintenance, fresh legal proceedings can be and will be
brought against him.

W.C.M.
MAQUTU

ACTING
JUDGE

17th
march, 1994.

For
Appellant : Mr. Mohau

For Crown
: Mr.Mohapi