We noted that whilst the charge related to unlawful entry, the judgment dealt at length with theft. Yet such theft, if any, only served to aggravate the alleged unlawful entry which the State charged the appellant with.

The convicted persons were tried and convicted by three different magistrates sitting at three different magisterial stations. Their cases landed on my desk for review...,. A common mistake occurred in each case. Each magistrate construed section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]..., as if it creates an offence of unlawful entry and theft...,.

The convicted persons in S v Standrech Chirinda, and S v Muketiwa Munemo, were tried and convicted separately by the same provincial magistrate sitting at Chivhu Magistrates Court. They were both charged for contravening section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

1. S v Standrech Chirinda  

The convicted person was charged as follows:

“Charged with the crime of unlawful entry and theft as defined in section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In that on 23 May 2009 at Gwena Village, Headman Chandiwana, Chief Neshangwe, Unyetu, Masasa, Standrech Chirinda unlawfully entered into the house of Noget Chirinda without authority, or any other authority from Noget Chirinda, and took 2*2 litres cooking oil, five green bars washing soap, seven counter books, eleven Eversharp ball points, five kilograms salt, five kilograms baulgar, two cartons matches, two kilograms flour, two kilograms sugar, and five hundred grams Vaseline, with the intention of permanently depriving Noget Chirinda of her property.”

He was convicted on his own plea of guilty.

The facts on which the charge is premised are that the accused entered the house of Noget Chirinda by forcing the key to open. He then stole the property mentioned in the charge. The convicted person confirmed that he agreed with the facts.

The stolen property is valued at US$140, and property valued at US$15 was recovered.

2. S v Muketiwa  Munemo

The convicted person is a seventeen year old who was charged with two counts of unlawful entry and theft. He was charged as follows:

Count One

“Charged with the crime of unlawful entry and theft as defined in section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In that on 3 June 2009, at house number F4 Chivhu location, Chivhu, Muketiwa Munemo unlawfully entered the house of Joseph Tangwanda without authority, or any other authority from Joseph Tangwanda, and took two jackets, fifteen plates, one pair white takkies, and cash US$8,with intention of permanently depriving Joseph Tangwanda of his property.”  

Count Two

“Charged with the crime of unlawful entry and theft as defined by section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In that on 3 June 2009, at house number F4 Chivhu location, Chivhu, Muketiwa Munemo unlawfully entered the house of Farisai Mvumba without authority, or any other authority from Farisai Mvumba, and took three trousers, three shirts, one pair brown shoes, and one aluminium pot, with the intention of permanently depriving Farisai Mvumba of her property.”

The facts are that in Count One, he displaced a plank in order to gain entry. While inside, he stole the property mentioned in the charge valued at US$50, of which property valued at US$15 was recovered.

In Count Two, he opened a closed window to gain entry into the complainant's house. He stole the property mentioned in the charge valued at US$40 of which property valued at US$15 was recovered.

3. S v Langton Murozvi

The convicted person was tried and convicted by a magistrate sitting at Murambinda Magistrates' Court. He pleaded guilty to a charge of contravening section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The charge sheet was framed as follows:

“Charged with the offence of contravening section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In that on 5 February 2009, and at Jefnos Vengesai's homestead, Chipwanyira Village, Headman Neshava, Chief Nyashanu, Langton Murozvi unlawfully, and intentionally, entered the house of Jefnos Vengesai without his, or any other lawful authority, and stole one by eight pane window frame, one green blanket, one plough wheel, three dinner plates, six by five metre deformed iron bars, the property of Jefnos Vengesai in his lawful custody.”

S v Peter Gunura Chasara

The convicted person appeared before a provincial magistrate sitting at Nyanga, and pleaded guilty to a charge of contravening section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

He was charged with the contravention of section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], and in the alternative, the contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In the main charge, which is the relevant charge, in this judgment, he was charged as follows:

“Charged with unlawful entry into premises as defined in section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In that on the date to the prosecutor (sic), but during the month of September 2008, and at Mapani Store, Mapani Business Centre, Nyanga, Peter Gunura intentionally, and without permission of the lawful occupier, Naome Kupeta, entered into the shop.”

The alternative charge, the contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]..., alleged that the convicted person stole from the complainant's store, and gave particulars of the stolen property.

The magistrate canvassed..., the theft aspect as follows:

“Q: Do you admit that after gaining entry you took complainant's property listed in the charge sheet?

A: Yes.”

The magistrate then asked the convicted person if he had any defence to offer, to which he answered “No.” The convicted person was then convicted as pleaded.

The prosecutor withdrew the alternative charge after plea. The magistrate then acquitted him on the alternative charge.

The first and second issues which arise are:

a. Should the theft have been treated as an alternative charge?

b. Should the magistrate have canvassed the elements of the contraventions of section 113(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] under the charge for the contravention of section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]?

The first issue can be answered in the affirmative, and the second issue in the negative.

In terms of section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], the fact that a convicted person stole from the premises he will have entered unlawfully will be used as an aggravating factor in assessing the appropriate punishment.

Once the sentence for unlawful entry takes into consideration the value of the stolen property, there will be little, or no, hope of the convicted person being sentenced to a stiffer sentence for the unlawful entry and theft charges. It is, therefore, competent to charge the accused with theft as an alternative to the charge of unlawful entry, but not because the crime of unlawful entry includes theft. It is because that crime is aggravated by theft. The value of the stolen property is essential in assessing the appropriate sentence.

The convicted person did not, therefore, suffer any prejudice because of the canvassing of the theft elements at the time the magistrate was canvassing the elements of unlawful entry.

It must, however, be stressed that the fact that the accused stole from the premises must be properly dealt with in aggravation to avoid the misconception that the crime committed is that of unlawful entry and theft.

The third and fourth issues which arise are:

c. Was the prosecutor correct in withdrawing the alternative charge?

d. Was the magistrate correct in acquitting the accused on the alternative charge?

As the contravention of section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] considers the stealing of property from the premises, and uses the value of the stolen property to determine the appropriate sentence, the prosecutor was entitled to withdraw the alternative charge of theft, as the accused was not likely to receive a different sentence on being convicted of both the unlawful entry and theft charges.

The magistrate in S v Peter Gunura Chasara seems, from the way he canvassed the elements of unlawful entry, to have construed section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] to create a combined offence of unlawful entry and theft.

This, however, did not cause a miscarriage of justice as the convicted person was, from his admission of the facts for both counts, aware of what was being alleged he stole from the complainant's store.

The questions arising in S v Peter Gunura Chasara slightly distinguish it from the cases of S v Standrech Chirinda, S v Muketiwa Munemo, and S v Langton Murozvi, but the real issue is on the correct interpretation of section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] by the three different magistrates.

They all construed it as if it combines the offences of unlawful entry and theft.

The common issue is, therefore, whether or not section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] creates an offence of unlawful entry and theft.   

The facts of each case are akin to those of the offence which, prior to the codification of our criminal law, was known as housebreaking with intent to steal and theft. The charges in the cases S v Standrech Chirinda, S v Muketiwa Munemo, and S v Langton Murozvi, allege that the convicted persons were being charged with the crime of unlawful entry and theft. The framing of the unlawful entry charge in S v Peter Gunura Chasara, though close to how a charge for unlawful entry should be framed, leaves out other important averments. The magistrate, however, canvassed the elements for the contravention of section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as if he was dealing with the crime of unlawful entry and theft.

I sought the Attorney General's comments on the interpretation of section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], and the framing of charges for the contravention of that section. He, in response, commented as follows:

“Section 131(1)(a) of the Code creates the offence of unlawful entry into premises. The crime is completed once the unlawful entry into premises is effected, regardless of the fact that no other crime has been committed in the premises. It follows, therefore, that the charge should be framed within that context.

To be specific, the charge should read as follows:

'Charged with unlawful entry into premises as defined in section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In that on..., and at...., A unlawfully, intentionally, and without permission or authority from B, the lawful occupier of the premises concerned, or without other lawful authority, entered B's premises by climbing into those premises through an open window.'

If, however, the crime is committed in contravention of section 131(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], then the charge should be cited as follows:

'Charged with unlawful entry into premises as defined in section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as read with section 131(2)(a-e), (whichever is applicable), of the said Act.'

I agree, indeed, that unlawful entry into premises is aggravated in circumstances provided under section 131(2) of the Code.

With reference to the four review records above, it is apparent that:

(i) The charge sheets were wrongly framed as they combined the crime of unlawful entry and that of theft, yet they should only reflect unlawful entry.

(ii) The theft perpetrated by the four accused after the unlawful entry should have been reflected in the State outlines only. The relevant trial magistrates should then have factored in those aspects as aggravating in considering relevant sentences.

Also note that under section 131 of the Code, one cannot be charged for any other separate crime apart from unlawful entry, as that would amount to a double jeopardy. Suffice to say that the crime committed after the unlawful entry should only be reflected in the State outline, and not in the charge sheet.”

Section 131(1)(a)(b) and (2) provides as follows:

“(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 and liable –

(a) To a fine not exceeding level thirteen, or not exceeding twice the value of any property stolen, destroyed, or damaged, by the person, as a result of the crime, whichever is the greater, or imprisonment for a period not exceeding fifteen years, or both, if the crime was committed in any one or more of the aggravating circumstances set out in subsection (2); or

(b) In any other case, to a fine not exceeding level ten, or not exceeding twice the value of any property destroyed, or damaged, by the person, as a result of the crime, whichever is the greater, or imprisonment for a period not exceeding ten years, or both.

(2) For the purposes of para (a) of subsection (1), the crime of unlawful entry into premises is committed in aggravating circumstances if, on the occasion on which the crime was committed, the convicted person –

(a) Entered a dwelling house; or

(b) Knew there were people present in the premises; or

(c) Carried a weapon;

(d) Used violence against any person, or damaged, or destroyed, any property, in effecting the entry; or

(e) Committed, or intended to commit, some other crime.”

Section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] enacts the crime of unlawful entry which is aggravated by the fact that the accused person stole property from the premises, or caused damaged, or destruction, to property. It does not create the offence of unlawful entry and theft as the magistrates seem to have construed it to.

The elements of the crime created by section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] are:

(a) An intentional entry into the premises; and

(b) Without the authority of the lawful occupier, or other lawful authority.

The crime is simply that of unlawful entry without authority, and is punishable at two levels, depending on whether or not it is aggravated by theft, damage, or destruction, of property, or the circumstances mentioned in subsection (2).

In the cases S v Standrech Chirinda, S v Muketiwa Munemo, and S v Langton Murozvi, the convicted persons' convictions for contravening section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] cannot be vitiated by the inclusion of the particulars, and elements, of theft, as the elements of unlawful entry were properly canvassed, and admitted by the convicted persons.

The salient facts are the following.

The applicant was convicted by a Bulawayo Regional Magistrate on thirteen (13) charges of housebreaking with intent to steal, and theft.

After hearing both parties' legal representatives, we dismissed the appeal and indicated that our reasons for doing so would follow in due course.

These are they.

The thirty-one year old appellant, who was jointly charged with one Thembinkosi Moyo, pleaded guilty to the crime of unlawful entry into premises and theft, as defined in sections 131(1) and 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] – and was duly convicted as pleaded.

The facts, which the appellant agreed with in toto, were that on 11 February 2009, under the cover of darkness, i.e. between the hours of 10pm and 6am on 12 February 2009, the appellant teamed up with other people and went to PPC Unicem Manufacturers at Cement Siding, Bulawayo. Using some object only known to them, they cut the razor wire on the perimeter durawall. They then scaled the durawall at that point to gain entry into the precincts of PPC Unicem Manufacturers.

While on the premises, they proceeded to the stores department and with some object, only known to them, they smashed one window pane, and gained entry into the building at that point. They went into the warehouse and stole therefrom a large amount of property valued at R70,972=64 of which a total of R20,000= worth of property was recovered.

The appellant and his colleagues had a benefit of R50,972=64...,.

The offence was carefully planned.

The accused persons were convicted by a Regional Magistrate for contravening sections 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]  and 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]...,.. They unlawfully entered the complainant's premises and stole property from his house and a motor vehicle from his premises. They pleaded guilty to the charges and were convicted.

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 ..., (5^th 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].

This is a review case referred to me by the learned Regional Magistrate in the exercise of his power for scrutiny.

The accused was charged with contravening section 131 of the Criminal Law (Codification and Reform) Act 2004 which is (unlawful entry into premises) which is formerly “housebreaking.” This crime has now been simplified as it eliminates the requirements regarding the nature of the premises broken into and the manner of entry. The use of the term “unlawful entry into premises” broadens the crime as its objective is to protect people's privacy against invasion.

The crime is committed where entry is made without permission or authority by the lawful occupier.  Section 131(2) of the Criminal Law (Codification and Reform) Act 2004 deals with aggravating circumstances, for example:

(a) When the accused entered a dwelling house;

(b) Knew that there were people inside the premises;

(c) Used violence against any person, or damaged or destroyed any property in effecting the entry; and

(d) Whether the accused committed or intended to commit some other crime.

In casu, the accused was charged with contravening section 131 of the Code, but, the court dealt with the matter as if the accused was being charged with the common law crime of housebreaking.

This should not have been the position. 

That crime has since been replaced by section 131 of the Code.

This, therefore, means that the conviction was improper. The accused should have been charged with unlawful entry as one count and theft as the other….,.

The following order is made:

(1) The conviction and sentence are set aside.

(2) The matter is referred back to the same court for a trial de novo before the same magistrate. In the event of a conviction, the court should not impose a sentence which is in excess of that which it imposed on the 5^th September 2011.

The appellant pleaded guilty to a charge of unlawful entry into premises as defined in section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was duly convicted by a Bulawayo magistrate and nothing turns on the conviction as he only appeals against the sentence imposed on him.

The brief facts of the case are the following.

The appellant was charged with two counts of contravening section 131(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which is commonly referred to as “housebreaking and theft.”

He was jointly charged with one Albert Dzingai.

The accused in this matter was convicted on his plea of guilty to a charge of unlawful entry in aggravating circumstances as defined in section 131(2)(e) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Although the process of conviction is otherwise in order, the framing of the charge warrants further scrutiny.

This matter was referred to me by the learned scrutiny magistrate as he observed that the sentence imposed was manifestly lenient.

In Count 4, the evidence against the appellant is overwhelming. 

He says he entered the complainant's house at night and deliberately did not announce his entry. He said he secretly entered the house because he wanted to drink water and disappear without the owner of the homestead noticing. He did this to avoid the talkative owner of the homestead. This story of seeking water to drink in the middle of the night is false and ridiculous. Why enter into someone's house secretly at night just to quench thirst? The appellant stated that he was about two (2) kilometers from his own homestead.

In his notice, the Attorney General also raised two issues that are worthy of mention. 

The 23 year old accused was properly convicted of two counts of unlawful entry as defined in section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The brief facts are that on 17 December 2014, and at 473 Zororo, Sakubva, Mutare, the accused unlawfully and intentionally stole a proline laptop and a Samsung Galaxy cellphone worth $320=. There is no indication as to whether anything was recovered.

In Count Two, the same accused stole various clothing items and cash in the same neighbourhood. The value of the clothes and cash was put at $243= and that only $10= was recovered from the accused person.

This matter came before me on automatic review. The accused had been convicted on his plea of guilty and sentenced to an effective 38 months imprisonment. The accused faced two counts, namely;

“(1) Unlawful entry into premises as defined in section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In that on the 19^th day of December 2015, at around 18:30 hours, and at Mapiravana Farm, Mahamara, Lalapanzi, Mathias Munikwa intentionally and without permission or authority from the lawful occupier of the premises entered the house of Nzane Muchengeti through unlocked door.

(2) Theft, as defined in section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In that on the 19^th day of December 2015, at around 18:30 hours, and at Mapiravana Farm, Mahamara, Lalapanzi, Mathias Munikwa unlawfully took one generator, one tent, one jacket, one pair of sandals, one bath soap and some food, the property of Nzane Muchengeti knowing that Nzane Muchengeti is entitled to own, possess or control the property or realizing that there was a real risk or possibility that Nzane Muchengeti may be permanently deprived of his ownership, possession or control of the property.”

The accused, aged 17, was convicted of 8 counts of unlawful entry into premises as defined in section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In addition, he was also convicted of 8 counts of section 113(1)(a) of the same Act which provision relates to theft….,.

Factually, the accused targeted business premises in Chipinge for unlawful entry accompanied by theft. He would access these premises through the roof and ceiling traps. The nature of property stolen varied from items such recharge cards, cell phones to groceries and cash, all depending on premises targeted. The value under each count equally varied from as little as US$42= per count to as much as $779= on the most serious count….,.

The convictions are proper….,.

Section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the CODE), which provides that any person who intentionally and without permission from the lawful occupier of the premises, or other lawful authority, enters the premises shall be guilty of unlawful entry into premises and liable to:

(a) A fine up to level thirteen or up to twice the value of the property stolen, destroyed or damaged as a result of the crime, or to imprisonment for a period up to fifteen years imprisonment, or both such fine and imprisonment if the crime was committed in one or more of the aggravating circumstances set out in subsection (2).

(b) In any other case, a fine up to level ten or not exceeding twice the value of the property stolen, destroyed or damaged or imprisonment for a period up to ten years.

It is my view that, for every case in which an accused person is charged with the crime of unlawful entry into premises, it is necessary to determine, from the facts set out in the outline of the State case, whether the crime was committed in aggravating circumstances. Failure to consider whether there were any aggravating circumstances has the same effect as failing to consider any mitigatory factors in passing sentence or whether special circumstances exist. The Legislature very graciously assisted us by proceeding to define aggravatory circumstances in section 131(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as follows:

“(2) For the purposes of paragraph (a) of subsection (1), the crime of unlawful entry into premises is committed in aggravating circumstances if, on the occasion on which the crime was committed, the convicted person -

(a) Entered a dwelling-house; or

(b) Knew there were people present in the premises; or

(c) Carried a weapon; or

(d) Used violence against any person, or damaged or destroyed any property, in effecting the entry; or

(e) Committed or intended to commit some other crime.”…,.

It is important to note that not all premises are “dwellings”. For example, company offices, or a clinic, or a school may well qualify to be regarded as premises but they are not “dwellings”. The intention of the legislature was to punish, more severely, an accused person who enters a place where people reside. It is a violation of the sanctity and privacy of one's home that is cherished in a civilized society. So, it is considered aggravatory simply to enter into a place where people live without invitation or authority. It is even more aggravatory to enter into a place where people live, with intent to commit some other crime….,.

In S v Trymore Zhakata HH13-13 it was said that the crime of unlawful entry into premises is a statutory offence which repeals and replaces the common law crime of burglary or housebreaking with intent to steal but with certain additional features. By virtue of paragraph (a) of subsection (1), as read with paragraph(s) (a) to (e) of subsection (2), the offence is aggravated by any of the circumstances set out in subsection (2).

In S v Chirinda & Ors HH87-09, the court said that this offence does not create a combined offence of unlawful entry and theft. What it does is to aggravate the offence of unlawful entry by prescribing a more severe penalty therefore in the event of any one or more of the circumstances enumerated in subsection (2) being established.

I wish to add my voice to that of other judges before me who respectfully disagree with the position that the elements of theft or other aggravating circumstance need not be stated in the charge and can merely be mentioned in the State Outline or agreed facts or in the prosecutor's address in aggravation. It is my view that, it is necessary for the State to prove or otherwise establish the relevant aggravating factor if it is to sustain a charge under section 131(1) as read with section 131(2)(a)(e) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The example has already been alluded to above that there is a difference between “mere unlawful entry into premises” and “unlawful entry into a dwelling”. It would be necessary for the State to prove whether the accused entered into any other premises or a dwelling. Where an accused enters into a dwelling that is a further aggravatory circumstance, as distinguished from entering any other premises such as a clinic. In some circumstances, unlawful entry into a church, for example, might provide greater aggravation, depending on what the accused is alleged to have done on gaining entry into the church. Perhaps he might be alleged to have desecrated some holy relics held dear by the followers of that church, to such an extent that a severe sentence might be called for as a deterrent to other would be offenders. For these reasons, in my view, it is necessary that the particulars of the alleged aggravatory features be specifically pleaded and proved by the State as part and parcel of the essential elements of the offence.

Addressing the court on alleged agravatory factors, from the Bar, is not the same as being required to prove, beyond a reasonable doubt, the essential elements of an offence, that the accused did indeed enter unlawfully onto premises in one or more aggravatory circumstances. If the aggravatory circumstances are not proved beyond a reasonable doubt, as part of the essential elements of the offence, how can a court rely on bald allegations by the prosecution from the Bar? The allegations will constitute facts which must be proved not matters of law.

It follows that where the State fails to prove the essential elements of the unlawful entry or any of the aggravatory circumstances, the fact of aggravation cannot be taken into account for the purposes of assessing and imposing the more severe sentence stipulated by that provision (or for ordering restitution). Once this is accepted, it seems to me unavoidable that the aggravating factor or circumstance be specifically pleaded and spelt out in any charge under section 131(1) as read with section 131(2)(a)(e) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Where the State fails to prove any of the aggravatory circumstances, the accused can be convicted of simple unlawful entry.

The accused was charged with a combined thirty counts of contravening section 131(1) and 2 (unlawful entry) and section 65 (rape) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]….,.

The offences took place between September 2011 and October 2012. The accused would basically break into domestic premises at night either through toilet or kitchen windows or the roof. He would be armed with items such as a knife and/or hammer; a cell phone with a torch. Once in the room, he would wake up his victim, threaten them with death and would demand money, cell phones, and laptops. Coupled with unlawful entry and theft, sexual violence was a tool used by the accused to exercise power and control over the victims in selected cases. It essentially became an adventure to his repertoire.

His luck ran out when he returned to the premises of one complainant where he had previously been. No doubt traumatised by her previous experience, upon hearing noises she had immediately managed to make contact with a relative in the police force using her cellphone. The response had been swift and the accused had been apprehended whilst inside the house. Thereafter, some of the complainants had identified him at an identification parade. The accused had also taken the police to other premises where he had committed the crimes and had given indications of how he had committed the offences at the relevant premises.

The convictions, in my view, are proper…,.

Both accused persons were convicted on their own pleas of guilt in both Counts by the learned Provincial Magistrate. In Count 1, the charge relates to unlawful entry into premises as defined in section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Count 2 relates to theft as defined in section 113(1) of the same Act.

I mention, in passing, that in order to avoid such errors both accused should have simply been charged with the offence of unlawful entry into premises in aggravating circumstances as defined in section 131(1) as read with section 131(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

On scrutiny, the Regional Magistrate, in terms of section 58(3) (b) of the Magistrates Court Act [Chapter 7:10], referred the record in this matter to this court for review. He had detected what he considered to be an anomaly. But, on perusing the record, I detected a far more serious anomaly. It had previously been raised by the trial magistrate - albeit in passing. But nothing came of it. It seems the scrutinizing magistrate missed it.

It was this.

From the facts, the charge preferred against the accused, and which he was convicted of, was relatively inconsequential. He should have been charged with a far more serious offence. Here are the details.

The accused pleaded not guilty to unlawful entry as defined in section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Code”). After a full trial, he was convicted of the offence and sentenced to twelve months imprisonment which was wholly suspended for five years on condition that he did not, during that period, commit an offence involving dishonesty for which, upon conviction, he would be sentenced to imprisonment without the option of a fine. In the course of her judgment the trial magistrate said this:

“The State managed to prove that the [accused] did unlawfully enter into the [complainant's] residence, and, further, went on to assault him with a dangerous weapon i.e. [a] machete. [Accused] could have easily killed [complainant] and the court is actually surprised why [accused] was not even charged with [the] more serious offence of attempted murder.”

Indeed, the accused, from the facts, should have been charged with attempted murder. At the very least, he should have been charged with assault in terms of section 89 of the Criminal Code.

In her reasons for sentence the trial magistrate said:

“The court considered that this is a very serious offence which was exacerbated by [an] assault with the use of a dangerous weapon.”

But, in my view, it was rather the other way round. The unlawful entry, under the circumstances, was inconsequential. The assault with a dangerous weapon did not merely exacerbate a serious offence. It was itself the serious offence.

Here are the full facts.

The complainant was 30 years old. The accused was his uncle. They lived in the same village. One night, around 23:00 hours, the accused, armed with a machete, barged into the complainant's bedroom. The door had been unlocked. The complainant said he had retired to bed. The accused then started assaulting the complainant all over the body with a machete. Colour photographs produced in court showed that the complainant sustained several lacerations on various parts of his body. He had shouted for help. Two of his relatives came to the rescue. Together with the complainant they overpowered the accused. They started walking towards the police station. Meanwhile, the accused's daughter, who had arrived at the scene, but after the accused had already been overpowered, had rushed to call the police. Apparently, she had reported the matter as an assault on her father. The police met up with the accused being escorted by the complainant and his assistants. Blood from the complainant had spilled onto the accused. The police assumed it had been the accused's blood. So they arrested the complainant and his assistants. However, the complainant managed to explain things out. It was then that the accused was arrested.

Incredibly, he was charged only with unlawful entry!

There was evidence that the accused had previously assaulted the complainant with a shovel. The reason for these assaults appeared to be the belief, by the accused, that the complainant was stealing his maize.

The medical affidavit by the attending doctor rated the complainant's injuries as serious. However, the affidavit had not been signed before a Commissioner of Oaths. That was the one anomaly noted and raised by the scrutinising magistrate. He said, in terms of section 278(11) of the Criminal Procedure and Evidence Act [Chapter 9:07], the affidavit should not have been accepted as an exhibit…,.

From the record, there is no doubt that even during the trial itself, the weight of the evidence, comprising the witnesses' testimonies and the exhibits, spoke of nothing but the assault. Very scanty attention was devoted to the elements of unlawful entry as set out in section 130 and section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code). Attention was wholly focused on the assault. The medical affidavit, which the Regional Magistrate scrutinised, was in relation to the assault, not the unlawful entry. The pictures of the complainant, showing lacerations on his body, were in relation to the assault, not the unlawful entry. The picture of the machete had also been produced in court. It was a wicked looking weapon. It was in relation to the assault, not the unlawful entry. In the witnesses' testimonies there was repeated reference to the amount of blood that had spilt from the complainant from the cuts to his body. That had nothing to do with the unlawful entry.

Under such circumstances, it defies logic why the State preferred such an inconsequential charge, leaving out the more obvious, more glaring, and more serious one.

Other than merely making reference to the anomaly in her judgment, as pointed out already, the trial magistrate did not check with the State as to why the more serious crime had been ignored. On his part, the scrutinising magistrate concerned himself with trivia. One would have thought that his initial concern about a wholly suspended sentence had been informed by the heinousness of the assault, not the unlawful entry. But it seems that it was not the case.

I find that the charge preferred against the accused was manifestly inappropriate. It offends against one's notion of justice. In the premises, whilst nothing else needs be done, I nonetheless withhold my certificate and decline to confirm that the proceedings in the court a quo were in accordance with real and substantial justice.

The appellant was convicted on one count of armed robbery by the Regional Court sitting at Harare. He had been charged with two Counts of armed robbery of two motor vehicles. He was, due to lack of evidence, acquitted on the other Count….,.

At the hearing of the appeal, counsel for the respondent conceded that the Regional Magistrate erred when he convicted the appellant of armed robbery when there was no evidence linking him to the robbery. Counsel for the appellant agreed with counsel for the respondent that the appellant should have been convicted of receiving the motor vehicle knowing it to have been stolen.

The complainant in the Count for which the appellant was convicted only had 30 seconds in which he observed the robbers. Thereafter, he was ordered not to look at his assailants and a gun was pointed at his head. In the 30 seconds he said he observed that the robber who approached his motor vehicle from the right was short, dark and stout. It is common cause that the appellant does not fit that description. The complainant said the robber who approached his motor vehicle from the left was tall and slim. Again, the appellant does not fit that description.

It must be noted that the complainant did not have sufficient time to observe the robbers. His brief observation, which was split between the robbers on either sides of his motor vehicle, could not have founded the appellant's conviction even if the description he gave fitted the appellant. On the contrary, the complainant said he was not able to identify the appellant as one of the robbers.

In view of the above we were satisfied that the Regional Magistrate erred when he convicted the appellant of armed robbery in the absence of evidence identifying him as having been at the scene of the robbery. We therefore found that the concession made by counsel for the respondent was properly made.

Counsel for the respondent, in making the concession, submitted that the applicant should be convicted on the competent verdict of receiving stolen property knowing it to have been stolen. He said this was to be premised on the appellant being in possession of the stolen motor vehicle the next morning after it had been robbed from the complainant after 10:00pm the previous night. He further pointed out that the appellant's conduct, after taking possession of the motor vehicle, proves he knew it was stolen. He pointed to the following as proof of such knowledge;

(1) That the appellant used an illegal exit from Zimbabwe to Mozambique resulting in the motor vehicle being stuck in Mukumbura River.

(2) He gave Cst. Muchira incorrect information about his identity and that of the motor vehicle;

(a) He told Cst. Muchira that he was Victor Mujuru Chatibva.

(b) He showed him a driver's licence in the name of Victor Mujuru Chatibva.

(c) He gave an incorrect registration number and colour of the motor vehicle.

This proves the appellant did not want to be linked to the motor vehicle he had driven from Harare to Mukumbura River. This can only be because he knew the motor vehicle had been stolen.

Counsel for the appellant agreed with counsel for the respondent that the evidence proved that the appellant received the motor vehicle knowing it to have been stolen.

We were satisfied that the concessions made by counsel for both parties were properly made.

We, after hearing counsel's submissions on sentence and hearing the appellant's father's evidence in mitigation, set aside the appellant's conviction on armed robbery and substituted it with one of receiving stolen property knowing it to have been stolen. We also set aside the Regional Magistrate's sentence of 10 years imprisonment with 1 year and one and a half years suspended on conditions of good behaviour and restitution and substituted it with one of 7 years imprisonment with 2 suspended on conditions of good behaviour.

We gave our brief reasons on tapes and indicated that a detailed judgment would follow.

In his submissions against the appellant's conviction on armed robbery, counsel for the appellant submitted that the doctrine of recent possession does not apply to robbery.

Counsel for the respondent, in his submissions, submitted that he has not been able to find a case where it was applied to robbery but submitted that it has been used in housebreaking with intent to steal and theft cases.

This is an important point of law which this court must determine even though this case can be resolved without relying on the doctrine of recent possession.

In the case of S v Parrow 1973 (1) SA 603 (A) referred to by counsel for the respondent, HOLMES JA…, said:-

“I pause here to refer briefly to the so-called doctrine of recent possession of stolen property. In so far as here relevant, it usually takes this form. On proof of possession by the accused of recently stolen property, the court may (not must) convict him of theft in the absence of an innocent explanation which might be reasonably true. This is an epigrammatic way of saying that the court should think its way through the totality of the facts of each particular case and must acquit the accused unless it can infer, as the only reasonable inference, that he stole the property. (Whether the further inference can be drawn that he broke into the premises in a charge such as the present one will depend on the circumstances). The onus of proof remains on the State throughout. Hence, even if after the closing of the cases for the State and the defence, it is inferentially probable that the accused stole the property, he must be acquitted unless the only reasonable inference is that he did so for the law demands proof beyond reasonable doubt.”

I respectfully agree with the learned judge of appeal. The important aspects of HOLMES JA's decision in S v Parrow 1973 (1) SA 603 (A) are:-

(1) The doctrine of recent possession is based on an inference being drawn that the possessor of recently stolen property stole the property.

(2 If he cannot give an innocent explanation of his possession; and

(3) The inference that he stole the property is the only reasonable inference that can be drawn from such possession.

In other words, recent possession can be used to found a conviction if the court, after sifting through the whole evidence before it, finds that the only reasonable inference which can be drawn from the recent possession is that the accused stole the property.

In the case of S v Parrow 1973 (1) SA 603 (A) the doctrine was applied to a house breaking with intent to steal and theft case. In my view, there is no reason why the doctrine cannot be used in any case of which theft is a component - like robbery. It would be absurd for the court, in a robbery case, to be satisfied that if it was only dealing with theft it could have drawn the inference that the accused stole the property but hesitate to find that since he stole the property he is the robber. There is, in my view, no reason for the hesitation. If the doctrine can be applied to house-breaking with intent to steal and theft cases there is no reason why it cannot be applied to robbery cases. The issue should simply be; does the evidence of recent possession prove he is the thief? If it does, and the stealing was during a robbery, then he will have been proved to be the robber just as such evidence can be used to prove that the thief is the housebreaker.

In the case of Black Samson v The Queen AD 106/69 BEADLE CJ…, said:-

“It appears from these cases that where fairly shortly after a housebreaking, the accused is found in possession of some of the articles which were stolen at the time and does not give an explanation that he received the stolen goods from a third party who may have stolen them, the court is perfectly justified in finding him guilty not only of housebreaking but also of the theft of the articles stolen at the time when the housebreaking occurred. The reasoning behind these cases is that where the evidence is sufficient to establish the fact that the accused stole a particular article from the complainant and if the theft of that particular article involved housebreaking, that evidence is sufficient to establish that the housebreaking which occurred at the time of the theft was committed by the accused…,.”…,.

In my view, this also applies to a person who is found in recent possession of goods stolen during a robbery. If the only inference that can be drawn from the totality of the evidence is that he stole the goods then he can be convicted of the robbery of those goods and others robbed from the complainant at the same time….,.

These then are our reasons for setting aside the appellant's conviction on armed robbery and substituting it with one for receiving stolen property knowing it to have been stolen…,.