HIGH COURT OF LESOTHO
Case No.39/99 C.R. 314/98
Order No. 1/2000 In Berea District
has come to this court on automatic review.
accused Lebeko Monyeke was charged in the Teyateyaneng Magistrate's
court of the Second Class on two counts namely:
Count I: in that upon or about the 26th day of July, 1998 and at or
near Pitsane in the Berea district the said accused did unlawfully
assault one Leronti Monyane and by intentionally using force and
violence to induce submission by Leronti Monyane did take and steal
from his person or out
immediate care and protection certain property to wit; one Omega
Radio cassette player with one cassette his property or in his lawful
possession, and did rob him of the same.
That the said accused is charged with the crime of Attempted Murder
in that upon or about the 29th day of July, 1998 and at or near Ha
Samo-samo in the district of Berea, the said accused did wrongfully
and unlawfully and intentionally acting with intention to kill did
shoot at Joubere 'Matli with a firearm and missed him.
evidence having been called the court per the learned magistrate
Morenzi had found that the crown having proved its case beyond
reasonable doubt the accused was guilty of the charges brought
against him and had accordingly convicted and sentenced the accused.
matter came on review by this court the court had asked itself of the
propriety of convicting an accused person on charges or robbery and
attempted murder the reason being that, according to the court, these
charges seemed to be of the same species so that the act was part of
the same transaction with a single intent, both acts of robbery and
attempted murder achieving a single intent and evidence necessary to
prove the attempted murder also necessary to prove robbery.
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.
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.
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.
instant case the accused was convicted of both robbery and attempted
murder. These offences occurred at the same time and were part of the
Evidence necessary to prove one offence was also necessary to prove
the other offence. Both counts included an element of assault and
there can be no doubt in this court's mind that these offences
constituted duplication of convictions.
result the conviction of attempted murder is set aside and so is the
accused is to be called before the Presiding Officer and the result
of the review explained to him.
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of Public Prosecutions
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