CRI/APN/97/84

IN THE
HIGH COURT OF LESOTHO

In the
matter of

JULIUS
JOSE KOROLOSO Applicant

v

REX
Respondent

JUDGEMENT

Delivered
by the Honourable Mr Justice J.L. Kheola on the 5th day of March,
1985

This is
an application for condonation for the late noting of appeal The
applicant was charged with the offence created by section
3(1) of the
Deserted Wives and Children Proclamation No.SO of 1959 as amended in
that he unlawfully failed to maintain his wife
and children
adequately while he is able to do so. On the 27th October, 1983 the
applicant was found guilty as charged and sentenced
to six months'
imprisonment which was suspended for three years on certain
conditions, In addition to that sentence he was ordered
to R150 per
month as maintenance for his family

In his
affidavit the applicant states that after his conviction he
immediately instructed his attorney and it was arranged that
his
affidavit would bo sent to him in the Republic of South Africa for
signature after it had been prepared When he arrived at
his place of
work he was given an assignment in the Northern Transvaal so that
when he returned from Northern Transvaal the affidavit
had been lying
in his room for a long time Furthermore he avers that he had been
under the impression that the statutory time within
which to note an
appeal was thirty days in both criminal and civil matters The Crown
opposed the application on the ground that
there were no prospects of
winning the appeal I granted the leave to appeal out of time and

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immediately
asked the counsels to address me on the merits.

it is
common cause that after the birth of her third child at Teyateyaneng
Hospital the complainant was allowed by her husband (the
applicant)
to go to her maiden home and to remain in the care of her mother
because she was ill It is again common cause that while
she was still
at her homo the applicant wrote a letter to her saying that he no
longer loved her and that she must not return to
their matrimonial
home. The applicant apparently wrote this letter after the
complainant had confessed to him that their third
child had been
fathered by a man called Teronko. The complainant denies that he ever
made such confession.

After the
writing of this letter the applicant changed his attitude towards his
wife and pleaded with her and her father that she
must return to
their matrimonial home together with the children The complainant and
her father are refusing to comply with the
applicant's request on the
ground that he must bring his relatives so that the two families may
discuss the contents of the letter
I have referred to above. At one
time the complainant went to the District Administrator and lodged a
complaint that the applicant
failed to maintain her and the children
The District Administrator heard both sides and it was agreed that
the complainant should
return to their matrimonial home She remained
there for only a short time before returning to her maiden home

I find
that the complainant is the one who has deserted the appellant by
refusing to return to their matrimonial home She went to
her maiden
home not because of any ill-treatment by the appellant and I find
that she is now behaving in an unreasonable way by
insisting that
before she can return home the appellant must bring his parents so
that the contents of his letter may be discussed
by both families.
The appellant may have been angry when he wrote that letter because
according to him the complainant confessed
that Teronko had made her

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pregnant
However, he has shown that he wants to reconcile with his wife. I do
not think that the parents of the parties have anything
to do with
this matter .Our law is that if the wife leaves or deserts her
husband without sufficient cause she loses her right
to claim
maintenance from him. He is not even liable for necessaries for any
children which she has taken with her Voortrekkewinkels
Ko-coporatief
Bpk v Pretorius ,1951 (1) S.A 730 (T), Bing and Lauer v. van der
Heever, 1922 T P.D. 282, Excell v. Douglas, 1924
C.P.D. 477 at p.
431) The appellant is under no legal obligation to maintain the
complainant as long as she refuses to return to
their home.

The
condonation for leave to appeal out of time is granted and the appeal
is allowed This is without any prejudice to the complainant
to pursue
other remedies available to her such as judicial separation or
divorce on the ground of adultery on the ground that the
appellant is
now living with another woman as man and wife.

J.L.
KHEOLA

JUDGE

1st May,
1986.

For
Applicant Mr Khauoe

For Crown
Mr Seholoholo