R v Monyeke (CR 314 of 98) [2000] LSCA 36 (4 February 2000)

IN T HE H I GH C O U RT OF L E S O T HO In the matter of: R EX v. L E B E KO M O N Y E KE R e v i ew C a se N o . 3 9 / 99 R e v i ew O r d er N o. 1 / 2 0 00 C . R. 3 1 4 / 98 In B e r ea District O R D ER ON R E V I EW T h is c a se h as c o me to this court on a u t o m a t ic r e v i e w. T he accused L e b e ko M o n y e ke w as charged in the T e y a t e y a n e ng Magistrate's court of the S e c o nd C l a ss on t wo c o u n ts n a m e l y: C o u nt I: in that u p on or a b o ut the 2 6 th d ay of July, 1 9 98 a nd at or near Pitsane in the B e r ea district the said a c c u s ed did unlawfully assault o ne Leronti M o n y a ne a nd by intentionally using force a nd violence to induce s u b m i s s i on by Leronti M o n y a ne did take a nd steal f r om his p e r s on or out of his i m m e d i a te care a nd protection certain property to wit; o ne O m e ga R a d io cassette player w i th o ne cassette his property or in his lawful possession, a nd did r ob h im of the s a m e. C o u nt II: T h at the said accused is charged with the c r i me of A t t e m p t ed M u r d er in that u p on or a b o ut the 2 9 th d ay of July, 1 9 98 a nd at or near Ha S a m o - s a mo in the district of B e r e a, the said a c c u s ed did wrongfully a nd unlawfully a nd intentionally acting with intention to kill did shoot at J o u b e re 'Matli with a firearm a nd m i s s ed h i m. C r o wn e v i d e n ce h a v i ng b e en called the court p er the learned magistrate M o r e n zi h ad found that the c r o wn h a v i ng p r o v ed its c a se b e y o nd reasonable d o u bt the a c c u s ed w as guilty of the charges brought against h im a nd h ad accordingly convicted a nd sentenced the accused. W h en this matter c a me on r e v i ew by this court the court h ad a s k ed itself of the propriety of convicting an a c c u s ed person on charges or r o b b e ry a nd attempted m u r d er the reason being that, according to the court, these charges s e e m ed to be of the s a me species so that the act w as part of the s a me transaction with a single intent, both acts of robbery a nd attempted m u r d er achieving a single intent a nd e v i d e n ce necessary to p r o ve the attempted m u r d er also necessary to p r o ve robbery. Thus in S. v. Benjamin En N Ander, 1980 (1) S. A. 950 (A) the accused were charged of attempted murder and robbery. The appellate division had found attempted murder can occur without an act of assault constituting an element thereof though in cases where an act of assault does constitute an element of attempted murder, the law in that case has to do with attempted murder as species of the offence of assault being assault with the intent to murder. On the other hand it was said robbery with the use of force is a species or the form of the offence of assault which is coupled with theft. In Benjamin's case above the two appellants were brothers who had been charged with attempted murder in that they had attempted to kill the complainant by means of shooting him with a rifle and secondly robbery with aggravating circumstances in that they had used violence on the complainant by shooting him with a firearm to threaten him with an intent to steal money in his custody. They were convicted on both counts of attempted murder and robbery and sentenced on each count. On appeal the court on an analysis of the evidence found that both charges had included a conviction of an act of assault, that is the shooting of the complainant with a firearm. Held, that the attempted murder and robbery had resulted in the appellants being twice convicted of the same act of assault, that is, the shooting of the complainant with a firearm. Held further that the appellants could only be convicted on one offence. In the instant case the accused was convicted of both robbery and attempted murder. These offences occurred at the same time and were part of the same transaction. E v i d e n ce n e c e s s a ry to p r o ve o ne o f f e n ce w as also n e c e s s a ry to p r o ve the other offence. B o th c o u n ts i n c l u d ed an e l e m e nt of assault a nd there c an be no d o u bt in this court's m i nd that these offences constituted duplication of convictions. In the result the conviction of a t t e m p t ed m u r d er is set a s i de a nd so is the s e n t e n c e. T he a c c u s ed is to be called b e f o re the Presiding Officer a nd the result of the r e v i ew e x p l a i n ed to h i m. G . N . M O F O LO J U D GE 4 th F e b r u a r y, 2 0 0 0. c.c. M a g i s t r a t e, B e r ea O /C Police, B e r ea O /C Prisons, B e r ea O /C Central Prisons C . I . D. Police H e a d q u a r t e rs (C. I. B.) Director of P r i s o ns Director of Public P r o s e c u t i o ns All M a g i s t r a t es All Public P r o s e c u t i o ns