THE State V Robson Dziwapasi

### Preamble
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HB 238/22
HCAR 2244/22
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THE STATE

Versus

ROBSON DZIWAPASI

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 15 SEPTEMBER 2022

Criminal Review

MAKONESE J: 	The accused appeared before a Magistrate at Gokwe on 19th July 2022 facing a charge of contravening section 131 of the Criminal Law Codification and Reform Act (Chapter 9:23).  The applicant pleaded guilty and was convicted as charged.  He was sentenced to 9 months imprisonment of which 3 months was suspended for 5 years on condition of good behavior.

The Scrutinising Regional Magistrate has queried the propriety of the charge.  The charge against the accused was framed as follows:-

“In that on the 27th day of June 2022 and at 3559 Sasame, Gokwe, Robson Dziwapasi unlawfully, intentionally and without permission or authority from Judah Mlangeni, the lawful occupier of the premises concerned or without the lawful authority entered Judah Mlangeni’s premises at 3559 Sasame, Gokwe by jumping the fence into the yard.”

The facts as gleaned from the outline of the state case are these:-

1.	On the 27th of June 2022 at around 0300 hours complainant was asleep at his homestead when he heard an unusual sound outside his house.

2.	Complainant opened his curtain and discovered that the accused person was unscrewing nuts on the wheel of his Toyota motor vehicle.

3.	Complainant and his two sons gave chase and caught up with the accused.

4.	Accused was taken to the police station where he was arrested and detained.

Accused was taken to court and the charge was read to him as framed above and he admitted the allegations.  He was convicted and sentenced on his own plea of guilty.  The facts of the case are silent on how the offence was committed.  When canvassing the essential elements of the offence the following questions were put to the accused:-

“Q -	It is alleged that on the 27th of June 2022 you entered into the complainant’s premises at 3559 Sasame, Gokwe without permission?

Do you understand the charge?

A -	Yes

Plea – Guilty 271 (2) (b) of the Act.”

The learned Magistrate seemed to have failed to realise that on the facts as read to the accused and as framed in the charge sheet the accused did not enter the premises at complainant’s residence.  Section 131 (1) of the Criminal Law (Codification and Reform, Act (Chapter 9:23) provides that:-

“(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…”

This section criminalises entry into premises as defined in section 130 of the Criminal Law (Codification and Reform) Act as follows:-

“Premises” – means any movable or immovable building or structure which is used for human habitation or for storage, and includes an out building, a shed, a caravan, a boat or a tent.

The definition of what constitutes “premises” is clearly set out in the Act, and its meaning is unambiguous.

In the case of S v Garanewako 2010 (1) ZLR 395 (H), MUTEMA J had this to say in interpreting the section, in similar circumstances:

“Now, the definition of “premises” in section 130 above is so clear and unambiguous that it admits of no other rule of interpretation except the ordinary grammatical meaning of the words employed.  Premises for 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 store-room-buildings or structures ordinarily used for human habitation and storage of property…”

The learned Judge in the Garanewako case examined a number of authorities including R.V. Piet Mitech 1912 TPD 1132, where a tent wagon used as a residence for a person or his family was held to be a structure and therefore a dwelling house within the meaning of the relevant statute for the purpose of an offence of housebreaking.  In Rex v Makoelman 1932 EDC 194, the accused was convicted of house breaking with intent to steal and theft (our present day unlawful entry into premises).  The evidence showed that the accused broke open a yard door (equivalent of a durawall gate) and stole a ladder kept in a  cellar (an underground room ordinarily used for storage 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 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 house breaking, the conviction was altered to “not guilty of housebreaking; and guilty of “theft.”

It is clear that in this matter the learned Magistrate, who has conceded the error on his part, did not apply his mind to the facts.  As shown in the above cited authorities entry into the yard did not constitute the offence of unlawful entry as contemplated under section 131 of the Code.  The accused in this case entered the yard by jumping a fence.  There is no other evidence that he went beyond the yard into any building or other structure.  In such circumstances the offence committed is criminal trespass as defined in section 132 of the Code.

Section 132 provides that:

“132. Criminal trespass

Any person who:

enters any land knowing or realizing 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 an offence and liable to a fine not exceeding level five or imprisonment for a period not exceeding 6 months or both.”

I do not consider it necessary to proceed to charge the accused on the alternative charge.  For the purpose of this review judgment I shall simply quash the proceedings and set aside the sentence.  It is hoped that this judgment is brought to the attention of the Chief Magistrate for circulation to Magistrates.

In the circumstances I make the following order:

1.	The proceedings are quashed.

2.	The conviction and sentence is set aside.

Makonese J………………………………

Moyo J………………………………… Agrees