IN THE HIGH COURT OF LESOTHO

In the matter of:

REX

v.
LEBEKO MONYEKE

Review
Case No.39/99 C.R. 314/98

Review
Order No. 1/2000 In Berea District

ORDER ON REVIEW

This case has come to this court on automatic review.

The 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

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of his 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.

Count II: 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.

Crown 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.

When this 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.

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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

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transaction. 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.

In the result the conviction of attempted murder is set
aside and so is the sentence.

The accused is to be called before the Presiding Officer
and the result of the review explained to him.

G.N. MOFOLO

JUDGE
4th February, 2000.

c.c. Magistrate, Berea O/C Police, Berea O/C
Prisons, Berea O/C Central Prisons C.I.D. Police Headquarters
(C.I.B.) Director of
Prisons Director of Public Prosecutions All
Magistrates All Public Prosecutions