IN THE
HIGH COURT OF LESOTHO

In the
matter of:

REX

V MOPELI
MATEISI

Review
Case No. 303/05 In Mohale's Hoek district

C.R. No.
162/05 Review Order No.25/2005

REVIEW
ORDER

The
proceedings have been brought to the High Court for automatic review.
On the 28th July, 2005 the accused person appeared before
a second
class subordinate court, charged with-

"contravention of section 13(b) (3)(a) and (c) of Stock Theft
(amendment) Act no. 5 of 2003"

The body
of the charge sheet disclosed, in a nutshell, that on or about 16th
June, 2005 and at or near Phamong, in the district
of Mohale's Hoek,
the accused unlawfully or intentionally stole 17 sheep, the property
or in the lawful possession of Motiki Nkoala
or received the sheep
knowing that they had been stolen.

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When the
charge was put to him, the accused pleaded not guilty and the plea of
not guilty was accordingly entered. However, at the
end of the trial,
the trial court found the accused guilty as charged and sentenced him
to pay a fine of M 2000.00 or serve a term
of two (2) years
imprisonment, in default of payment of the fine.

It is
worth noting that the Stock Theft Act no.5 of 2003, under which the
accused was charged, in the court below, is an Act to
amend the Stock
Theft Act no. 4 of 2000 which is the principal law. The law under
which the accused ought to have been charged
is, therefore, the
principal law viz. Act no.4 of 2000 and nor the amending law viz. Act
no.5of 2003.

Even if I
were wrong and it is held that the accused was correctly charged
with-

"contravention of section 13 (b)(3)(a)

and (c) of the amending Act no.5 of 2003,"

it is significant to observe that the section provides, in part:

"13. the principal law is amended

in section 13-

(a) by deleting...........................

(i)......................................

(ii)....................................

(b) by adding the following sub- section after sub-section (2):

"(3) A person who –

(a) steals;

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(b) attempts to steal;

(c) receives, knowing to have been stolen;

(d) is in unlawful possession, without a satisfactory account of such
possession of; or

(e) conceals or procures the theft of;

(f) illicitly acquires or fails to show lawful means of acquisition
of; stock or produce or both, as the case may be, commits an

offence....;"

As framed
by the prosecution, the charge which the accused faced in the court
below, was clearly embarrassing to him inasmuch as
it was two-pronged
viz. theft and receiving stolen sheep knowing they had been stolen.
As it has already been stated, earlier in
the judgment, the trial
court found the accused guilty as charged. It is, however, not clear
whether that means he was convicted
of theft or receiving stolen
sheep knowing they have been stolen.

The
combination of charges in one charge is bad for duplicity. It is an
irregularity that occasions a failure of justice (THEKO
V REGINA
1958-1966 H.CT.L.R. 46 at p. 47). For these reasons, both the
conviction and the sentence of the accused cannot be allowed
to
stand. They are accordingly quashed, on review.

B.K,
MOLAI

JUDGE

3rd
January, 2006

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Copy:

Chief Magistrates

All Magistrates

Magistrate Mohale's Hoek

All Public Prosecutors

O/C Police Mohale's Hoek

O/C Prison Mohale's Hoek

CID Headquarters - Maseru

Director of Public Prosecutions

Director of Prisons Maseru