R v Lehloka and Others (CRI/T/19/2004)

Case No: 
CRI/T/19/2004
Media Neutral Citation: 
[2004] LSHC 154
Judgment Date: 
13 December, 2004

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CRI/T/19/2004

IN THE HIGH COURT OF LESOTHO


In the matter of:

REX

vs

1. GEORGE MANUEL LEHLOKA

2. NEO VICTOR LIBE

3. GLEN TEBOHO SEROBANYANE

4. DANIEL M. MASIEA

5. MOKOMA MANUEL MOTHAKATHI

6. THABO ANTHONY MONYAU


RULING


Delivered by the Honourable Mr. Justice B.K. Molai On 13th day of December, 2004


The accused are charged with five (5) counts of theft and five (5) counts of fraud. It is, perhaps, necessary to mention that when, on 6th December 2004, the accused appeared before the court, number 2 accused was not in attendance. There were, therefore, only five (5) accused who were duly represented by their legal representatives.


It is common cause that, on 1st December 2004 and before they could plead to the charges, the accused served the Director of Public Prosecutions


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(DPP) with notice in terms of the Criminal Procedure and Evidence Act 1981 of which section 159 read with section 160 provides, in part:


"159. (1) The accused may, before pleading, apply to the court to quash the charge on the ground that it is calculated to prejudice or embarrass him in his defence.

(2)......................................................................................

(3)......................................................................................


160. (1) When the accused intends to apply to have a charge quashed under section 159, or to except, or to plead any of the pleas mentioned in section 162, except the plea of guilty or not guilty, he shall give reasonable notice (regard being had to the circumstances of each particular case)-


(a) to the Director of Public Prosecutions or his representative if the trial is before the High Court; or

(b).........................................................................................

(c)........................................................................................

Stating the grounds upon which he seeks to have the charge quashed or upon which he bases his exception or plea.


(2)......................................................................................."


In their notice served upon the D.P.P., on 1st December 2004, the accused noticed the former that they would, on 6th December 2004, seek an order:


(a) excepting to or quashing count 1 (theft) alternatively count 6 (fraud);

(b) excepting to or quashing count 2 (theft) alternatively, count 7 (fraud);

(c) excepting to or quashing count 3 (theft) alternatively, count 8 (fraud);

(d) excepting to or quashing count 4 (theft) alternatively, count 9 (fraud);

(e) excepting to or quashing count 5 (theft) alternatively, count 10 (fraud);


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It was alleged, in the notice served on the DPP, that the grounds relied upon for the order sought by the accused were that the formulation of charges/ indictments caused an improper splitting of charges inasmuch as the evidence necessary to prove the charge of theft was the same evidence required to prove its alternative charge of fraud.


As I see it, the difficulty about the evidence necessary to prove the charge of theft being the same evidence required to prove its alternative charge of fraud is that no evidence has, as yet, been adduced. That being the case, it stands to reason that, at this stage, the court is not in possession of the evidence on which it can make an independent decision that the evidence necessary to prove the charge of theft is the same evidence required to prove its alternative charge of fraud. Such decision will be possible only after the court has heard the evidence.


As to the question whether the accused persons can, at this junction, object to the way the formulation of the charges has been made, on the ground that it amounts to improper splitting of charges, it is to be observed that at p. 172 of their work, Criminal Procedure Handbook by Bekker, Geldenhuys, Joubert, Swanepoel, Terblance & van der Merwe the learned authors have this to say:


".......the State may formulate as many charges as the available facts justify,

and no exception can be taken against the charge sheet if the accused is charged with more than one offence in respect of one punishable fact. If, however, if appears at the end of the trial that according to the proven facts,


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two charges comprice one and the same punishable fact the court will convict the accused on one charge only."


When dealing with the issue of splitting of charges it would appear that the courts are concerned not so much with formulation of charges as with the duplication of convictions. It is, however, the task of the court to see to it that an accused is not convicted of more than one offence if the crimes with which the accused is charged in the relevant charges rest on the same culpable fact. In short, it is the court's duty to guard against a duplication of convictions and not the prosecutor's duty to refrain from the duplication of charges. See also p. 298, of Gardiner and Lansdown, where it is said, on the issue:

"Save where there can be no reasonable doubt as to the offences to be charged, the duplication of charges but not of convictions, is permitted."


On the above cited authorities, the application for the order sought by the accused cannot succeed and it accordingly fails.


B.K. MOLAI

JUDGE


13/12/04


For Crown : Mr. Louw

For Defence : Mr. Semenya