The State v Edward Maripfonde and Gift Banda

Two accused persons were each charged with four counts framed as "contravening s 131 as read with 113 of the Criminal Law Codification and Reform Act [Cap 9:23] 'Unlawful entry into premises and theft.'" The allegations were that on four occasions each accused unlawfully entered various complainants' dormitories at St. Alberts High School Girls' quarters and stole property therefrom. Both accused pleaded guilty to all four counts. However, the trial magistrate recorded the verdict as "guilty as pleaded both counts" instead of all four counts. In sentencing, accused 1 received 2 years imprisonment with a 3 months suspended sentence from a previous conviction incorporated, while accused 2 received 1 year imprisonment. The trial magistrate failed to confirm accused 1's previous conviction properly and did not indicate which counts the sentences related to. The matter came before the High Court on automatic review.

• Whether sections 113 (theft) and 131 (unlawful entry into premises) of the Criminal Law (Codification and Reform) Act create two separate standalone offences that cannot be charged as read with each other
• What is the proper charge when an accused unlawfully enters premises and steals property therefrom
• Whether the trial magistrate erred in recording the verdict as 'guilty as pleaded both counts' when there were four counts
• Whether the trial magistrate erred in failing to properly confirm accused 1's previous conviction and ask whether the suspended sentence should be brought into operation
• Whether the trial magistrate erred in failing to indicate which counts the sentences related to

The court made the following orders: (1) Each count was amended to read: unlawful entry into premises in aggravating circumstances in contravention of section 131(1)(a) as read with subsection (2)(a) of the Criminal Law (Codification and Reform) Act; (2) The verdict was amended to read: each accused, guilty as pleaded all four counts; (3) The trial magistrate was directed to recall both accused persons and: (a) explain the amendments to the charges; (b) explain the correct verdict; (c) explain that all four counts were treated as one for sentence; (d) in respect of accused 1, conduct an enquiry whether he is the person previously convicted and if so, to show cause why the suspended sentence of 3 months imprisonment should not be brought into operation; (4) The proceedings were to be re-submitted for review thereafter. Takuva J agreed with the judgment.

Sections 113 and 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] create two separate standalone offences of theft and unlawful entry into premises respectively, and it is procedurally wrong and incompetent to charge one as read with the other. Where a person unlawfully enters premises and steals property therefrom, the proper charge is unlawful entry into premises in aggravating circumstances in contravention of section 131(1)(a) as read with subsection (2)(e), not two separate charges of unlawful entry and theft. The aspect of theft committed during unlawful entry is encompassed within section 131 and should not be charged separately under section 113. This interpretation flows from the clear and unambiguous wording of section 131(1)(a) which provides enhanced penalties when unlawful entry is "committed in any one or more of the aggravating circumstances" including under subsection (2)(e) where the person "committed or intended to commit some other crime." Trial magistrates must comply with section 327(3) of the Criminal Procedure and Evidence Act by properly confirming previous convictions and allowing the accused to show cause why suspended sentences should not be brought into operation.

The court noted that it would "stop short of holding that it is also wrong and incompetent to charge one with both unlawful entry into premises in contravention of section 131 and theft in contravention of section 113" without according the matter the benefit of informed sufficient argument by the relevant stakeholders. However, Mutema J expressed his "considered humble and respectful opinion" that by creating the two standalone offences and providing for aggravating circumstances in section 131(1)(a) read with subsection (2)(e), the Legislature clearly intended these offences to be standalone, with theft during unlawful entry encompassed in section 131 rather than charged separately under section 113. The court suggested that the continued practice of charging both offences separately may be due to "the old adage that old habits die hard" from when there was a single offence of "housebreaking with intent to steal and theft" which has now been codified into two separate offences.

This case is significant in Zimbabwean criminal law as it clarifies the proper charging practice when an accused unlawfully enters premises and commits theft. It establishes that sections 113 (theft) and 131 (unlawful entry into premises) of the Criminal Law (Codification and Reform) Act create separate standalone offences that cannot be charged together as "read with" each other. The judgment resolves what had been "a grey area" causing confusion in the lower courts. It provides authoritative guidance that where theft occurs during unlawful entry into premises, the proper charge is a single count of unlawful entry into premises in aggravating circumstances under section 131(1)(a) read with subsection (2)(e), not two separate charges. The case also emphasizes the importance of proper criminal procedure, including accurately recording verdicts for all counts charged and complying with statutory requirements regarding previous convictions and suspended sentences. It demonstrates the High Court's review function in correcting procedural irregularities and ensuring proper application of the criminal law code.