The accused in this case was
arraigned before a magistrate sitting at Chitungwiza facing a charge of
contravening section 131 of the Criminal Law (Codification and Reform) Act [Chapter
9:23]. The section criminalises unlawful entry into premises.
The charge was framed thus; “In
that on the 6 day of April 2010, and at Number 133 Svinurai Phase 1, Dema,
Walter Garanewako unlawfully and intentionally, and without permission from
Babra Mhizha the lawful occupier of the premises concerned, or without lawful
authority, entered the premises at Number 133 Svinurai Phase 1, Dema by
opening the sliding gate.”....,.
The pertinent facts read-
“4. On 6 day of
April, 2010 and at around 03.00 hours the complainant entered her homestead and
was surprised to see that her sliding gate was opened.
5. When she entered the gate she
found the accused person standing aimlessly...,. near her motor vehicle.
6. She called him asking him who
he was but he kept quiet and later moved towards her.
7. The accused person then took
the state of a drunkard..., person and began stammering.”
He
was subsequently arrested. He pleaded guilty to the charge as framed supra and
was duly convicted.
The scrutinising Senior Regional
Magistrate was not satisfied with the propriety of the charge given the
attendant facts of the case. He then referred the matter for review commenting
inter alia; “The accused person is said to have gained entry into the
complainant's yard enclosed by a durawall on 6 April 2010. He accessed the yard
by opening a sliding gate. He did not enter the house but was interrupted
whilst in the yard. The issue is whether the enclosed yard is a structure or
premises for the purposes of unlawful entry...,. I talked to the learned
magistrate and she felt her interpretation was correct. I also talked to fellow
Regional Magistrates and other magistrates in the provincial courts and the
answers I got made me to write this scrutiny minute..., so that we would be
guided by the Higher Court. I feel that the proper charge should have been
trespass under section 132...,.”
The
observations made herein are pertinent in that from a substantial number of
review matters it has been gleaned that a sizeable number of magistrates have
no clue regarding the distinction between the offences of unlawful entry into
premises in terms of section 131 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] and criminal trespass in terms of section
132 of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
Section 131(1) of the Criminal Law (Codification
and Reform) Act [Chapter 9:23] provides:
“(1) Any person who intentionally
and without permission or authority from the lawful occupier of the premises
concerned, or without other lawful authority, enters the premises shall be
guilty of unlawful entry into premises...,.”
Section
131(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] spells out aggravating circumstances to include where
the convicted person -
“(a) Entered a dwelling house; or
(b) Knew there were people
present in the premises ; or
(c) ...,.;
(d) ...,;
(e) ...,.”
Section 132 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] provides-
“(1) Any person who –
(a) Enters any land knowing or
realising that there is a real risk or possibility that such entry is
forbidden; or
(b) Having entered any land,
fails or refuses, without lawful excuse, to leave the land when called upon to
do so by the lawful occupier or any other person with apparent authority to
require him or her to leave; shall be guilty of criminal trespass and liable to
a fine not exceeding level five or imprisonment for a period not exceeding six
months or both.
(2) It shall be presumed, unless
the contrary is shown, that a person accused of criminal trespass knew or
realised that there was a real risk or possibility that entry into the land in
question was forbidden where the land was an enclosed area.
(3) For the purposes of subs
(2)-(a) an “enclosed area” means an area of land the perimeter of which is
enclosed by a sufficient wall, fence or hedge that is continuous except for one
or more entrances that are barred or capable of being barred by a gate or other
means;”
Section
130 of the Criminal Law (Codification and Reform) Act
[Chapter 9:23] defines
the word “premises” as “any movable or immovable building or structure which is
used for human habitation or for storage, and includes an outbuilding, a
shed a caravan, a boat or a tent.”…,.
Now, the definition of “premises”
in section 130 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
above is so clear and unambiguous that it admits of no other rule of statutory
interpretation except the ordinary grammatical meaning of the words employed;
Premises, for the purposes of unlawful entry, means any movable or immovable
building or structure used for human habitation or storage. Apart from those
structures mentioned in the section the term also includes such structures as a
house or storeroom-buildings or structures ordinarily used for human habitation
or storage of property. The legislature deliberately employed the phrase “in the
premises” in section 131(2)(b) of the Criminal Law (Codification and Reform)
Act [Chapter 9:23]..., in spelling out aggravating circumstances – where the
convicted person knew there were people present “in the premises” when he
committed the unlawful entry. It did not use the phrase “on the premises” which
would mean outside the dwelling house or storage structure. It is pertinent to
note that the crime of unlawful entry into premises is nothing more than a
codified version of the old offence that used to be called housebreaking with
intent to commit a specified crime within the premises so broken into. There is
certainly, and patently, a world of difference between this offence and the one
of criminal trespass which relates to, and is limited to, land as we know it
(usually with written signs prohibiting entry) or an enclosed area on which is
situated a building or structure ordinarily used for human habitation or for
storage of property and is outside that building but is surrounded by a
sufficient wall, fence or hedge that is continuous and has an entrance(s)
either barred or capable of being barred by a gate or other means (what is
commonly referred to as a yard).
A brief look at case law
authorities that have dealt with the definition of premises for purposes of
unlawful entry would be salutary in unravelling this seeming confusion exitant
in some judicial officers of the lower courts. In R v Piet M'tech 1912 TPD 1132
a tent wagon used as a residence for a person or his family was held to be a
structure and therefore a dwelling within the meaning of the relevant statute
for the purposes of an offence of housebreaking.
In Rex v Makoelman 1932 EDL 194,
the accused was convicted of housebreaking with intent to steal and theft (our
present day unlawful entry into premises). The evidence showed that the accused
broke open a yard door (the equivalent of a durawall gate) and stole a ladder
kept in a cellar (an underground room ordinarily used for storage purposes
especially for wine). It was not shown that the cellar door was locked or
closed or even that it had a door. It was held that as the evidence was
consistent with the cellar having been entered through an open door, window or
other aperture, or the ladder having projected from the cellar and having been removed
with entry of the cellar, and as the breaking into the yard was not
housebreaking, the conviction should be altered to one of “not guilty of
housebreaking; guilty of theft.” Of pertinence to note from the case is that
the breaking open of the yard door and entry into the yard itself as well as
into the cellar itself without displacing any obstacle to facilitate the entry
did not constitute housebreaking (unlawful entry). By the same token, in the
instant case, the opening of the sliding gate and the entry into the yard did
not, and cannot, amount to unlawful entry into premises. At best, it is
criminal trespass – simple and straightforward.
In R v Lawrence 1954 (2) SALR 408
breaking into a cabin of an officer on a ship in dock with intent to steal was
held to be correctly designated as housebreaking (unlawful entry into
premises). OGILVIE THOMPSON J..., holding that the cabin of the ship broken
into was ordinarily used for human habitation by the ship's Second Officer and
hence the crime was correctly designated as housebreaking, relied on the
learned authors GARDINER & LANDSDOWN, Vol.2 ..., (5th ed) where
they state that to constitute the crime of housebreaking with intent to commit
a crime “the premises broken must be such as are, or might ordinarily be, used
for human habitation or for the storage or housing of property of some kind.”
In R v Rayiti 1984 (1) ZLR 269
(HC) it was stated that the word “house,” as applied to the crime of
housebreaking, is a term of art covering premises or structures that are not
houses in ordinary parlance. The test whether a structure or premises can be
broken into is whether it is such as is, or might ordinarily be used for human
habitation, or for the housing or storage of property of some kind. There must,
in addition, be some degree of permanence about the purpose for which the
structure is used. Items such as caravans and camping tents, which are
specifically designed and intended for human habitation, would constitute
“premises” even though, by their very nature, they are more likely than not to
stand empty and unused or to be folded up and not used for substantial periods.
Given the foregoing, it is as
clear as day follows night that the mere opening of a sliding gate of a
perimeter wall surrounding the yard of a dwelling premises and only entering
that yard as what happened in casu can never legally found the crime of
unlawful entry into premises as envisaged by section 131 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23].
On the facts of the case, the
competent charge should have been criminal trespass as defined in section
132(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
In the result, I am unable to confirm that the
proceedings in this case are in accordance with true and substantial justice. I
accordingly refuse my certificate.
