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