TOPIC SEVEN: THE RULE AGAINST
DUPLICATION OF CONVICTIONS
The rule against duplication of convictions is sometimes wrongly called the rule against
splitting of charges
Section 83: Charge Where it is Doubtful What Offence Committed
Where there is uncertainty as to what charges the facts will prove, the accused can be
charged with all or any of the possibilities at once
Charges can also be framed in the alternative
However, if the prosecutor chooses to allege the charges in the alternative, a conviction
cannot be obtained on both the charges – as it is in the alternative, it is one or the other
It must be noted that objection cannot be taken to so-called ‘splitting of charges’, but
objection can be taken to duplication of convictions (S v Grobler en ‘n Ander)
Section 336: Act or Ommission Constituting Offence Under Two or More Laws
m
Where an act or omission constitutes an offence under two or more statutory provisions or
er as
is an offence against a statutory provision and the common law, the person guilty of such
co
act or omission shall, unless the contrary intention appears, be liable to be prosecuted and
eH w
punished under either the statutory provision or, as the case may be, under the statutory
provision or the common law, but shall not be liable to more than one punishment for the
o.
act or omission constituting the offence
rs e
ou urc
Test for Improper Duplication
There are two traditional tests:
o
o The single intention test (i.e. were the crimes committed with a single intention?)
aC s
o The evidence test (i.e. does the evidence which establishes the commission of one
vi y re
crime also establish the commission of another? For example, does the evidence
establishing the commission of a robbery also establish the commission of theft
and assault?)
In terms of the single intention test, if a person committed several acts, each of which
ed d
could be an offence on its own, but which constituted a continuous transaction carried out
with a single intent, his or her conduct would constitute only a single offence.
ar stu
In terms of the evidence test, the court enquires whether the evidence necessary to
establish the commission of one offence involved proving the commission of another
offence
The problem with these tests is that
S v they areen
Grobler theoretically
‘n Ander helpful but are difficult to apply
is
The first appellant had entered a café with a pistol in his hand and threatened the café owner’s
daughter-in-law. The owner’s son grappled with the first appellant, who had fired two shots at him, the
Th
one in his thigh and the other at the back of his head
The owner then came out of the residential quarters with a shot gun and fired one shot at first
appellant who ducked and in doing so was missed
First appellant then pressed his pistol against the owner’s head and shot him dead
sh
Thereafter he had taken the money out of the cash-box and run away
The second appellant had waited outside for him with a car, and, after first appellant had climbed in,
driven him speedily away. Second appellant had known that that first appellant had the pistol and that
it might be used
On charges of murder and robbery, it appeared that both offences had been committed and they were
convicted on both charges and sentenced
This case dealt with the question of law as to whether there had been an improper duplication of
charges
The court held that there was no improper duplication of charges as the appellants had not been
convicted or sentenced twice for the same offence
The court also noted that this question arises at the end of the trial
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, S v Prins en ‘n Ander
The two appellants had been charged with both murder and robbery
They had attacked the complainant with a rake and he had died 9 days later from the injuries sustained
from the attack. After the assault, they had robbed him
On appeal it was contended that there had been a duplication of charges with a subsequent duplication
of convictions
The court held that the act of violence by the appellants on the deceased led to two separate results:
the causing of the death of the deceased and the furnishing of an opportunity to remove the money
and the goods
The violence on the deceased had not been done with one intent but with the intent to rob the
deceased as well to cause his death
m
Thus the appellants had not been convicted twice of the same crime and there had not been an
er as
improper splitting of charges
co
eH w
o.
rs e
ou urc
S v Benjamin en ‘n Ander
The two appellants were brothers who had been charged with both attempted murder and robbery with
aggravated circumstances
The appellants had attempted to kill S by shooting him with a firearm and, secondly, had used violence
o
on S and had threatened him and had led him to believe that force would be used in that they had shot
aC s
him with a firearm and had threatened him with such firearm with intent to steal the money in the
vi y re
custody of S
They were convicted and separate sentences on each count were imposed
In an appeal the court held that both charges had included a conviction of an act of assault, i.e. the
shooting of S with a firearm.
Accordingly, the court held that the attempted murder and robbery had resulted in the appellants being
ed d
twice convicted of the same act of assault, i.e. the shooting of S with a firearm
Thus the court held that the convictions of attempted murder had to be set aside and that the
ar stu
sentences on each should be altered
is
S v Benjamin appeared to go against previous authority until the case of S v Moloto where
Th
the SCA overturned the principle in Benjamin
Therefore it is possible to have a conviction on charges of both attempted murder and
robbery – the court in S v Moloto did not say that the finding in Benjamin was wrong, but
stated that the circumstances in Benjamin were highly exceptional
sh
The bottom line is that convictions on both attempted murder and robbery are possible
When considering whether or not there was an improper duplication of charges, the
definition of the offences in question is a logical starting point
S v Moloto
The two appellants were charged with both attempted murder and robbery
The court held that where attempted murder is committed in connection with a robbery the State is
entitled, according to the circumstances, to charge the accused with robbery and with attempted
murder
Furthermore, the court is entitled to find him guilty on the two separate offences provided that it was
proved beyond reasonable doubt that the accused also had the intention to kill and not merely to use
This study source was downloaded by 100000826075669 from CourseHero.com on 05-23-2021 04:25:48 GMT -05:00 2
force
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DUPLICATION OF CONVICTIONS
The rule against duplication of convictions is sometimes wrongly called the rule against
splitting of charges
Section 83: Charge Where it is Doubtful What Offence Committed
Where there is uncertainty as to what charges the facts will prove, the accused can be
charged with all or any of the possibilities at once
Charges can also be framed in the alternative
However, if the prosecutor chooses to allege the charges in the alternative, a conviction
cannot be obtained on both the charges – as it is in the alternative, it is one or the other
It must be noted that objection cannot be taken to so-called ‘splitting of charges’, but
objection can be taken to duplication of convictions (S v Grobler en ‘n Ander)
Section 336: Act or Ommission Constituting Offence Under Two or More Laws
m
Where an act or omission constitutes an offence under two or more statutory provisions or
er as
is an offence against a statutory provision and the common law, the person guilty of such
co
act or omission shall, unless the contrary intention appears, be liable to be prosecuted and
eH w
punished under either the statutory provision or, as the case may be, under the statutory
provision or the common law, but shall not be liable to more than one punishment for the
o.
act or omission constituting the offence
rs e
ou urc
Test for Improper Duplication
There are two traditional tests:
o
o The single intention test (i.e. were the crimes committed with a single intention?)
aC s
o The evidence test (i.e. does the evidence which establishes the commission of one
vi y re
crime also establish the commission of another? For example, does the evidence
establishing the commission of a robbery also establish the commission of theft
and assault?)
In terms of the single intention test, if a person committed several acts, each of which
ed d
could be an offence on its own, but which constituted a continuous transaction carried out
with a single intent, his or her conduct would constitute only a single offence.
ar stu
In terms of the evidence test, the court enquires whether the evidence necessary to
establish the commission of one offence involved proving the commission of another
offence
The problem with these tests is that
S v they areen
Grobler theoretically
‘n Ander helpful but are difficult to apply
is
The first appellant had entered a café with a pistol in his hand and threatened the café owner’s
daughter-in-law. The owner’s son grappled with the first appellant, who had fired two shots at him, the
Th
one in his thigh and the other at the back of his head
The owner then came out of the residential quarters with a shot gun and fired one shot at first
appellant who ducked and in doing so was missed
First appellant then pressed his pistol against the owner’s head and shot him dead
sh
Thereafter he had taken the money out of the cash-box and run away
The second appellant had waited outside for him with a car, and, after first appellant had climbed in,
driven him speedily away. Second appellant had known that that first appellant had the pistol and that
it might be used
On charges of murder and robbery, it appeared that both offences had been committed and they were
convicted on both charges and sentenced
This case dealt with the question of law as to whether there had been an improper duplication of
charges
The court held that there was no improper duplication of charges as the appellants had not been
convicted or sentenced twice for the same offence
The court also noted that this question arises at the end of the trial
This study source was downloaded by 100000826075669 from CourseHero.com on 05-23-2021 04:25:48 GMT -05:00 1
https://www.coursehero.com/file/80213798/7-The-Rule-Against-Duplication-of-Chargesdoc/
, S v Prins en ‘n Ander
The two appellants had been charged with both murder and robbery
They had attacked the complainant with a rake and he had died 9 days later from the injuries sustained
from the attack. After the assault, they had robbed him
On appeal it was contended that there had been a duplication of charges with a subsequent duplication
of convictions
The court held that the act of violence by the appellants on the deceased led to two separate results:
the causing of the death of the deceased and the furnishing of an opportunity to remove the money
and the goods
The violence on the deceased had not been done with one intent but with the intent to rob the
deceased as well to cause his death
m
Thus the appellants had not been convicted twice of the same crime and there had not been an
er as
improper splitting of charges
co
eH w
o.
rs e
ou urc
S v Benjamin en ‘n Ander
The two appellants were brothers who had been charged with both attempted murder and robbery with
aggravated circumstances
The appellants had attempted to kill S by shooting him with a firearm and, secondly, had used violence
o
on S and had threatened him and had led him to believe that force would be used in that they had shot
aC s
him with a firearm and had threatened him with such firearm with intent to steal the money in the
vi y re
custody of S
They were convicted and separate sentences on each count were imposed
In an appeal the court held that both charges had included a conviction of an act of assault, i.e. the
shooting of S with a firearm.
Accordingly, the court held that the attempted murder and robbery had resulted in the appellants being
ed d
twice convicted of the same act of assault, i.e. the shooting of S with a firearm
Thus the court held that the convictions of attempted murder had to be set aside and that the
ar stu
sentences on each should be altered
is
S v Benjamin appeared to go against previous authority until the case of S v Moloto where
Th
the SCA overturned the principle in Benjamin
Therefore it is possible to have a conviction on charges of both attempted murder and
robbery – the court in S v Moloto did not say that the finding in Benjamin was wrong, but
stated that the circumstances in Benjamin were highly exceptional
sh
The bottom line is that convictions on both attempted murder and robbery are possible
When considering whether or not there was an improper duplication of charges, the
definition of the offences in question is a logical starting point
S v Moloto
The two appellants were charged with both attempted murder and robbery
The court held that where attempted murder is committed in connection with a robbery the State is
entitled, according to the circumstances, to charge the accused with robbery and with attempted
murder
Furthermore, the court is entitled to find him guilty on the two separate offences provided that it was
proved beyond reasonable doubt that the accused also had the intention to kill and not merely to use
This study source was downloaded by 100000826075669 from CourseHero.com on 05-23-2021 04:25:48 GMT -05:00 2
force
https://www.coursehero.com/file/80213798/7-The-Rule-Against-Duplication-of-Chargesdoc/
