JUSTICE COLLEGE

CRIMINAL PROCEDURE
SECTION 83 AND DUPLICATION OF
CONVICTIONS

CRP 7

Justice College, Private Bag X659, Pretoria, 0001, South Africa Tel 012-481 2892 Fax no. 012-481 2892
COMPILED BY : A HATTINGH
DATE/DATUM : MAY 1987
UPDATED BY : M A J NGELANGA
DATE : DECEMBER 2005
EDITION : 2006

No part of this note may be reproduced or transmitted in any form or by any means
without the required permission in writing.
 INDEX

TITLE PAGE

1. INTRODUCTION 1

2. SECTION 83 1

3. THE EFFECT OF SECTION 83 ON THE RULE 4

AGAINST SPLITTING OF CHARGES

4. THE RULE AGAINST DUPLICATION OF 5

CONVICTIONS AND THE PRACTICAL IMPLEMENTATION
IMPLEMENTATION THEREOF

5. SECTION 336 13
 1

SPLITTING OF CHARGES
(DUPLICATION OF CONVICTIONS)

1. INTRODUCTION

The purpose of this note is to discuss the problems surrounding the common law rule
against so-called splitting of charges. In order to place the matter in the correct
perspective attention must necessarily be given to the provisions of section 83 of the
Criminal Procedure Act, 1977 (Act 51 of 1977). (Unless specifically otherwise
stated, all references to sections are references to sections of this Act.)

2. SECTION 83

2.1 This section provides as follows:

“If by reason of any uncertainty as to the facts which can be proved or if for any
other reason it is doubtful which of several offences is constituted by the facts which
can be proved, the accused may be charged with the commission of all or any of such
offences, and any number of such charges may be tried at once, or the accused may
be charged in the alternative with the commission of any number of such offences”.

2.2 In regard to the predecessor of section 83 the court remarked as follows in Grobler
1966 (1) SA 507 (A) 513F.

“The result of this section…is that the State is at liberty to draw up as many charges
as the available facts justify” (my translation).

2.3 When the prosecutor draws up a charge sheet or indictment the information in the
docket is often insufficient. So for example, the docket can show that the accused
burnt down a shed and that a charred body was later found therein. Because of
uncertainty as to the facts which can be proved, the prosecutor may charge the
accused with both arson and murder. Since it is possible that the accused’s intention
will only become clear during the presentation of the defence case and a conviction on
 2
both may follow; when drawing up a charge sheet the prosecutor should bear in mind all
possible convictions and, if necessary, provide for such in the charge sheet.

2.4 Section 83 makes provision for three possibilities in connection with the drafting of a
charge sheet.

(a) The accused may be charged with any one of several offences.

(b) The accused may be charged with each one of the possible offences
separately, under separate counts: Count 1, count 2, etcetera.

(c) The accused may be charged with all the possible offences in the alternative,
for example a main count and one or more alternative counts, preferably in
order of seriousness.

2.5 Although the possibility in 2.4 (c) above represents the usual manner of drawing up a
charge sheet, the possibility in 2.4 (b) above is also correct. An accused who drives a
motor vehicle on a public road, whilst under the influence of liquour, and kills a
pedestrian, can find himself charged with: count 1 culpable homicide, count 2 –
contravening section 165 of the National Road Traffic Act, 1996 (driving under the
influence of liquor). In Grobler supra 513G Rumpff J A commented as follows in
this regard:

“The effect of this section is therefore inter alia that, at the commencement of the
trial, no objection can be made to the charge if in terms thereof one criminal fact is
charged as more than one offence”. (my translation)

and in the same case at 522E Wessels JA remarked as follows:

“The section has no doubt drawn a veil across the taking of exceptions of a technical
nature directed to the formulation of the charges”.

2.7 There is no obligation on the state to indicate at the close of the state case which of
the charges the state wishes to proceed with – Van Zyl 1949 (2) SA 948 (C) at 950.
 3

2.8 When the accused is charged with a main count together with alternative counts
(paragraph) 2.4 (c) above) the State only requires a conviction on an alternative count
if the main count is not proved – Grantham 1953 (4) SA 663 (N) at 666. The court is
still obliged to discharge its duty of deciding in its own opinion whether the accused
ought to be convicted on the main charge. (September 1996 (2) All SA 118 (A)).
Where more than one charge is proved, the court will convict on the charge which the
facts best suit – See Hiemstra Suid Afrikaanse Strafproses 6th edition, 238 and
Zechlin 1955 (1) SA 651 (N) at 653F where the court remarked as follows:

“In the result, I come to the conclusion that when a magistrate has before him
evidence which establish both of two alternative counts, it is open to him to convict on
either, subject to the prosecutor’s right to withdraw on any count”

(the latter portion is obviously incorrect, since the prosecutor may not withdraw a
charge after plea – see section 6(a)). Unless the manner in which the charge is
formulated to allow such a choice, it is doubted whether the court has such a free
choice. “Fraud alternatively theft” is not the same as “Main Count: Fraud,
alternative charge: Theft”. In the former, the court has a discretion on which charge
to convict, the latter offers the court no such discretion – see Langa 1985 (3) SA 833
(N); Peters 1996 (2) SACR 212 (C) and Nqwakuzayo 2003 (1) SACR 253 (Tk)

2.9 When a trial court has found an accused not guilty on a main charge, but guilty on an
alternative charge, the court of appeal can reverse the finding and convict on the main
charge – section 304, Motha 1987 (1) SA 374 (T), Du Toit 1966 (4) SA 627 (A) and
Ngobo 1980 (1) SA 579 (B).

2.10 If an accused is convicted on the main count, a judgment on the alternative count is
unnecessary. Du Toit 1966 (4) SA 627 (A) and Ngobo supra. If,

however, a trial court wishes to convict on a third alternative, a verdict should first be
given on the main, first and second alternative count, before the accused is convicted
on the third alternative count.
 4

2.11 It is unnecessary, in fact it is superfluous, where a competent verdict exists in respect

of a particular offence to charge the competent verdict as an alternative on the charge
sheet. See Seboko 1956 (4) SA 618 (O) and M 1959 (3) SA 332 (A). The court
should however inform the accused, particularly an undefended one, of a possibility
of a conviction on a competent verdict; see Velela 1979 (4) SA 581 (C).

2.12 Section 81(1) authorizes the state to join any number of charges in the same
proceedings against an accused, at any time before any evidence has been led in
respect of any particular charge and to number each charge consecutively. The
question arises whether this applies to alternative charges, since section 81 does not
specifically refer to such charges and the fact that charges joined in terms of section
81(1) must be numbered consecutively, may create the impression that alternative
charges may not be joined. Alternative charges may be joined in terms of section 83
if it is doubtful which of several offences is constituted by the facts. If this doubt
exists at the time section 81 (1) is utilized there appears to be no good reason why
alternative charges cannot be joined. It is submitted that alternative charges can also
be joined in terms of section 81(1).

2.13 Another question that arises is whether the joinder provided for in terms of section
81(1) can take place after questioning in terms of section 112(1)(b) or when section
115 has been concluded. The answer to this question depends on the meaning
attached to the word”evidence” in section 81(1). Some debate existed concerning
this question in the past see Slabbert 1985 4 SA 248 (R); Wibooi 1980 (2) SA911
(NC) and Van Heerden 1995 (2) SACR 339 (T). In Hendricks 1995 (2) SACR 177
(A) it was however held that statements made by the accused during section 112
proceedings do not constitute “evidence”. Charges may therefore be added after the
plea stage.

3. THE EFFECT OF SECTION 83 ON THE SO-CALLED RULE AGAINST

SPLITTING OF CHARGES

It is clear that the wording “splitting of charges” is a misnomer (Tantsi 1992 (3)
SACR 333 (Tk)) since the rule is actually aimed at the undue duplication of
convictions. In Grobler 1966 (1) SA 507 (A) at 513F Rumpff JA stated:
 5

“In my view the section deals with the manner of charging and not with the statutory
or common law principles applicable to conviction and sentencing. The result hereof
is that the State is free to draw up as many charges as the available facts justify. At
the end of the trial it is the duty of the court to decide whether an offence has been
proved and how many offences have been proved”.

4. THE RULE AGAINST SPLITTING (DUPLICATION OF CONVICTIONS)

AND THE PRACTICAL IMPLEMENTATION THEREOF

4.1 This rule can be traced as far back as Marinus 5 SC 349 in which the following was
said as 352:

“It is an objectionable practice to split up charges and so enable the magistrate to

impose punishment in the whole far in excess of the limit of the jurisdiction conferred
on him by the legislature”.

4.2 In Ex parte Minister of Justice: In re Moseme 1936 AD 52, de Villiers J described

the rule as follows:

“Where an accused has committed only one offence in substance, it should not be
split up and charged against him in one and the same trial as several offences”

The rule is clearly designed to prevent a duplication of convictions Tantsi 1992 (2)
SACR 333 (Tk).

4.3 In an attempt to maintain the rule, various tests have from time to time been proposed
and applied by the courts to determine whether or not there has been an improper
splitting of charges. These tests are practical guides which may be utilized to
determine whether or not there is actually only one offence in substance. It is
impossible to say that any one of these tests will cover particular case that may arise,
or to lay down any hard and fast rule which will apply to every possible instance
which may arise. The approach and tests are described in Ntswakele 1982 (1) SA 325
(T) at 330 – 331 as follows:
 6

“There is thus no universal test or criterion which can be applied to every case to
determine whether or not the actions of the accused amount in substance to one
offence. The basic approach is that of common sense and fairness prescribed in
Kuzwayo 1960 (1) SA 340 (A), and I would add fairness not only to the accused but
also to the state. That approach is to be aided, where possible by the application of
two practical tests, namely:
(1) Whether the acts alleged in the charges were committed with a single intent or
in the course of a single criminal transaction (the so-called single intent test)
and
(2) Whether the evidence necessary to establish one of the acts involves proof of
the other (the so-called evidence tests).

In those difficult theft cases which do not yield to the application of one or other of
those tests, the decision must depend on a consideration of all the circumstances of
the accused’s conduct including the following:
(1) The period or periods over which the acts or transgressions were carried out;
(2) The place or places where they were carried out – for example the ransacking
of several rooms in a private house might amount to one theft, (my
emphasis)whereas the removal of articles from several rooms in a hotel would
prima facie amount to several thefts;
(3) The nature of the accused’s actions, the enquiry being whether there was one
actus reus covering the whole operation, or several acta rea;
(4) The intention of the accused in carrying out the course of conduct.”

This approach was applied in Mawelele 1990(2) SA 8 (T).

In Nambela 1996 (1) SACR 356 (E) at 357 Leach J, stated:

“It is virtually impossible to lay down a general and inflexible test as to when there is a
splitting or duplication of charges or convictions – S v Christie 1982 (1) SA 464 (A) at 485H.
Whether there has been an improper duplication of charges ultimately depends on a common
sense view of the matter and of what is fair to both the accused and the State in the light of
the established facts – see S v Ntswakele 1982 (1) SA 325 (T) at 330 and S v Mawelele
1990(2) SA 8 (T) at 14. There are two practical aids which can be used in the determination
 7
of the enquiry. First, where the evidence which is required to support one charge also
establishes the other there is, in truth, only one offence but, where the one charge does not
consist of the same elements as the other, there are two offences. Secondly, if there are two
actions of which can establish a separate crime but associated with one single and
continuous intention, only one crime is in fact committed. These two practical aids can either
be applied separately or conjuctively but are neither exhaustive nor conclusive.”

Obviously where dolus is not an element of the offence charged, then the “single intent” test
cannot be utilized and the court will rely on the second or “evidence” test – Hiemstra Suid-
Afrikaanse Strafproses 6th edition 236.

4.4 Although these two tests have been formulated through the years by the courts, many
problems are encountered in practice. The facts of each case must be the deciding
factor. In Johannes 1925 TPD 782 at 786 Curlewis JP stated as follows:

”And it seems to me that the court can safely lay down that under certain
circumstances both these tests, or one, or the other, may be applied… (referring to the
“intent” and “evidence” tests). It depends entirely on the circumstances of each
particular case”

In Grobler 1966 (1) SA 507 (A) at 524 C the court concluded that convictions on both
murder and robbery were in order “because the whole extent (i.e. all the objectionable
elements) of the first appellants criminal conduct could not have been brought within
the ambit of one charge”.

4.5 The following are a few examples of how our courts have dealt with the problem in
practice:

(a) In Rankolane 1931 EDL 159 the accused stole at the same time and place,
two oxen belonging to K and a cow belonging to P. He was convicted of two
counts of theft. By applying the “intent” test, however, it was held to be
splitting since there was a single intent to steal. See also Labuschagne
1997(2) SACR 6 (NC).
 8

(b) In Koekemoer 1956 (2) SA 140 (E) the accused stole items belonging to five
different owners at the same time from a changing room. He was convicted of
five counts of theft. The court on review followed the Rankolane decision
and found splitting to have taken place.

(c) In Polelo 1981 (2) SA 271 (NC) the accused stole goods from two
complainants who lived in the same room, it was one act and one intent and
therefore only one theft, even if the accused was aware that the property
belonged to two different persons. See also Ndlovu 1962 (1) SA 108 (N).

In Toubie 2004 (1) SACR 530 (W) the court, after analyzing the remarks of
Joubert AJA in Prins 1977 (3) SA 807 (A), came to the conclusion that the
robberies which formed the subject matter of counts 1, 2 and 3 were
committed within the framework of a single intent.

In Toubie (supra), the accused entered a certain business premises, held the
staff at gunpoint, robbed three staff members of their personal belongings and
also robbed the shop.
They were indicted and subsequently convicted of three counts of robbery
(with aggravating circumstances) in the trial court.

On appeal, two of the robbery convictions (counts 2 and 3) were set aside and
the one charge of robbery (count 1) was amended to incorporate counts 2 and 3.
This resulted in the accused merely being convicted of a single count of
robbery as the court held that these were committed within the framework of a
single intent as the evidence necessary to sustain any one of them was
indispensable for the purpose of sustaining the others.
The court found that the force used to overcome the complainants in count one
and to rob them, was the same force which enabled the accused to deprive the
business of its goods.

(d) In Kuzwayo 1960 (1) SA 340 (A) the accused was found in possession of a
pistol which he had stolen earlier. He was convicted of both the theft and the
unlawful possession of the pistol. The court applied the “intent” and
 9
“evidence” tests and found that there was no splitting. At 344D it was stated that:

“even if this offence (the theft) in law continued after the contrectatio as long
as the accused remained in possession of the pistol, the actual offence he
committed after he had stolen the pistol, until it was found in his possession on
the 10th, was the unlawful possession of the pistol without a licence. Two
separate offences were committed and no reason exists not to deal with it as
two” (my translation)

(e) In Kahn 1949 (4) SA 868 (N) the accused was convicted of (1) hunting game
without a licence, (2) the hunting of game by means of an artificial light and
(3) trespassing on land on which game is found. On appeal counsel for the
defence contended that there was splitting based on the “intent” test. The
court, however, applied the “evidence” test and held that there was no
splitting. At 870 Broome J stated:

“In applying the latter test (evidence test) I do not think that it is necessary to
go beyond the material facts which must be proved in order to establish each
count”.

(f) In Nomga 1984 (3) SA 79 (N) the accused was convicted of contravening
section 138(1) of Ordinance 21 of 1966 (reckless driving) and a contravening
of section 140(2)(a) of the same Ordinance (driving a vehicle with excessive
alcohol in the blood). The court on review applied the intent test” and held
that the intent required for the one offence is not the same as the intent
required for the other. The court also held that the elements of the respective
offences also differed to such an extent that the culpable facts of the accuse’d
actions could not be brought within the ambit of one charge (see 4.4 supra).

(g) In Mlilo 1985 (1) SA 74 (T) the accused drove a motor vehicle whilst under
the influence of liquor and caused a collision. He was convicted of
contravening section 140(1) (a) of Ordinance 21 of 1966 (driving under the
influence) and also of contravening section 138(1) of the same Ordinance
(negligent driving). The court on review emphasized at 75C that the ”intent”
test could not be applied (see paragraph 4.3. supra) and, applied the “evidence
 10

test”, since in the particular instance the collision could be attributed tot the
accused’s intake of liquor. The remarks by the court of review at 75F are
important:

“… if the elements of a contravention of section 138(1) or 140 (1) are

considered, in my opinion a conviction or both counts could in specific cases
follow” (my translation).

In Engelbrecht 2001(2) SACR 38 (C), the court however held that when
reckless or negligence driving is as a result of intake of intoxicating liquor,
this entire wrongful transaction should be treated as one, depending on time
and space.
See also Wehr 1998(1) SACR 99(C).

(h) In Maansdorp 1985 (4) SA 235 (C) the accused was convicted on two counts
of contravening section 2(b) of Act 41 of 1971 in respect of (a) the possession
of dagga and (b) the possession of Mandrax tablets. In a well motivated
judgement the full bench referred to the fact that both substances were listed in
the same schedule, part I therefore, as prohibited dependence producing drugs.
The court was also of the opinion at 239i that the mere fact that different
sentences were prescribed and different presumptions applied to specific form
of an offence does not necessarily mean that one has to do with different
offences. The court held that it was splitting on the mere grounds of
interpretation. Philips 1984 (4) SA 536 (C) was overruled and Driedricks
1984 (2) SA 814 (C) followed. Maansdorp’s ruling was followed in Festers
1985 (4) SA 242(C), Swartz 1986 (3) SA 287 (T) and Mkize, Osborne,
Naidoo 1987 (4) SA 430 (N).

(i) In Gunther 1982 (1) SA 394 (C) the accused, a pharmacist, was convicted of
three counts of contravening a statutory provision in that he had failed to keep
an adequate register of certain medicines and related substances sold by him.
His convictions were based on the fact that he had made three different
incorrect entries in the register concerned. On appeal the court held that there
had been a splitting on the grounds that “all the inaccurate entries are merely
 11
elements of one offence, namely failing to keep the register in the prescribed
from..”

(j) In Mampa 1985 (4) SA 633 (C) the accused was convicted on two counts of
culpable homicide arising from a motor accident in which two people were
killed. The “intent test” could not be applied and the court held at 640D that
“the single evidence test cannot be regarded as decisive”. The court found that
there had been splitting on the following basis:

” In relation to the deaths of both passengers the accused’s conduct was the
same and his negligence was one and the same act of negligence and
constituted in our opinion one offence is substance”.
The same approach to culpable homicide where more than one person was
killed is found in Chamboko 1964 (1) PH H69 (SR), Nomen 1978 (2) PH
H209 (EC), Erasmus 1983 (1) PH H57 (O) and Mavuso 1989 (4) SA 800 (T).

The case of Naidoo 2003 (1) SACR 347 (SCA) however changed this latter
approach, thus advocating multiplicity of convictions in culpable homicide
cases where more than one person is killed. Where multiple deaths have been
caused, it is immaterial that they were caused by a single negligent act or
omission, provided only that multiple deaths were reasonable foreseeable
consequence. It is foreseeable and actual consequences of accused negligent
act which determine whether she or he is liable to be charged with one or more
counts of culpable homicide.

(k) Where a person intentionally causes the death of more than one person, it is
trite law that he is guilty of as many charges of murder as there are persons
killed. In Mampa 1985 (4) SA 633 (C) a detailed exposition of the situation
regarding murder is given at 638B-G. See also Grobler 1966 (1) SA 507 (A)
at 512A.

(l) In Pieterse 1982 (3) SA 679 (A), the accused abducted a nine year old girl,
raped her and in the process throttled and injured her to such an extent that she
died. He was convicted of rape and murder and sentenced to death on each
count. The intention to rape and the intention to murder (dolus eventualis)
 12
were found to be completely different (688D). The same difference in intent
can be found in armed robbery cases where the victim is fatally wounded
(Prins 1977 (3) SA 807 (A)). The facts in each case will play the decisive role.

(m) In Manamela 1985 (4) SA 542 (B) the accused stabbed three victims during
one incident. He was charged with three counts of assault. The magistrate
ruled that there had been a splitting of charges and convicted the accused on
one count only. On review the “intent test” as well as the “evidence test” was
applied and with the assistance of both tests the court came to the conclusion
that there was no splitting. The decision of the trial court was altered and he
was convicted on all three counts of assault. See also Mbonambi 1986 (3) SA
41 (N) and Diedericks 1984 (3) SA 814 (C).

(n) In Prins 2003(2) SACR 510, the accused was convicted of two counts of
contravening the provisions of the Child Care Act 74 of 1983. The first count
related to the contravention of section 50(1)(b), in that she abandoned her two
children. The second count related to the contravention of section 50(2), in
that she failed to maintain and/ or provide for the children.

On review, it was held that there was in this case, a single intent which formed
both the act of abandonment as envisaged under section 50(1)(b) and failure to
comply with parental duty as envisaged under section 50(2). The High
Court’s conclusion was that there had been an undue splitting of charges and
duplication of convictions.

(o) In Toubie 2004 (1) SACR 530 (W) the accused was convicted on separate
counts of the unlawful possession of a firearm and the unlawful possession of
ammunition as two distinct offences. It was held that this was not improper
duplication of convictions. Evidence necessary to prove unlawful possession
of a firearm would have been complete without the essential evidential matter
necessary to sustain a charge of unlawful possession of ammunition.

4.6 Although it provides no solution to the problem, mention must be made of

Makazela 1965 (3) SA 675 (N) where the following was said at 675G-H:
 13

“In some cases even if there has been a technical splitting of charges, the
mischief of this can be met by the expedient of treating all the counts as one
for the purposes of sentence, and prejudice to the accused may be thereby
avoided”.

But in the very next sentence the court warned as follows:

“This is, however, frequently not the case where the number of previous
convictions has a relevant bearing upon the future punishment to which an
accused may become exposed …” See also Xulu 1973 (1) PH H25 (N).

4.7 When a court finds that a conviction on more than one count will amount to a
splitting, the court should (after hearing the state and the defence in this
regard), before judgment, amend the charge sheet in terms of section 86 so
that the particulars regarding the “goods in regard to” and the ”person
against whom” (section 84 (1)) are correctly reflected in the single charge on
which it is intended to convict. An acquittal on the remaining charges(s) then
follows: See Mampa 1985 (4) SA 633 (C). Such an amendment is not only
procedurally correct, but is also important when it comes to sentence.

5. SECTION 336

5.1 Section 336 reads as follows:

“Where an act or an omission constitutes an offence under two or more

statutory provisions or is an offence against a statutory provision and the
common law, the person guilty of such act or omission shall, unless the
contrary intention appears, be liable to be prosecuted and punished under
either 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 act or omission constituting the offence.”

5.2 It is clear that the legislator is referring to the position where two offences are
constituted by the same act or omission. The fundamental principle is that the
 14
accused should not be punished more than once for an act or omission
constituting more than one statutory offence or a statutory as well as a
common law offence. (Hiemstra op cit 920). The following can serve as an
example: pointing a firearm which is a statutory offence as well as the
common law offence of assault.

5.3 It is important to note that this section only applies when a single act
constitute more than one offence of which at least one is a statutory offence.

dp/Joe Note 83
 15

DUPLICATION OF CONVICTIONS

1
Consider and
apply the
definitions / Period over which act(s) was/ were committed
elements of the
various offences in
question
Place(s) where act(s) was / were committed

Nature of accused’s action(s)

2 Consider and INCLUDING
apply all
circumstances /
Accused’s intention when act(s) was/ were committed
facts [Johannes
1925 TPD 782;
Ntswakele 1982 (1)
SA 325 (T)]
To both the By applying both or
accused and either one or the
Common sense prosecution other of the
3 Basic approach [Kuswayo 1960 following guiding
that of - and (1) SA 340 (A); principles
Ntswakele 1982
(1) SA 325 (T)]

Fairness
Single intent test Evidence test