The State v Kundai Daus

The accused appeared before a Mbare magistrate charged with unlawful entry into premises as defined in s 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations were that he entered Iris Biscuits Company's premises by entering through an opening on the durawall closed by cardboard boxes. Upon entering, he went to where packs of Zapnax (snacks) were placed. When seen by a security guard on duty, he tried to run away but was apprehended. He pleaded guilty to the charge and was sentenced to 8 months imprisonment wholly suspended for 5 years on condition that he does not commit any offence involving unlawful entry punishable by imprisonment without the option of a fine.

• Whether the area entered by the accused constituted 'premises' as defined in s 130 of the Criminal Law (Codification and Reform) Act
• Whether the facts disclosed the offence of unlawful entry into premises under s 131 or criminal trespass under s 132
• Whether the sentence imposed was appropriate for the offence committed

The conviction was upheld but confirmed as criminal trespass under s 132 rather than unlawful entry into premises under s 131. The sentence was set aside and altered to: 6 months imprisonment wholly suspended for 5 years on condition the accused does not during that period commit an offence involving criminal trespass to which upon conviction he is sentenced to imprisonment without the option of a fine.

The binding legal principles established are: (1) 'Premises' as defined in s 130 of the Criminal Law (Codification and Reform) Act means a movable or immovable building or structure used for human habitation or storage with some degree of permanence, and does not include a durawall or merely an enclosed area; (2) Entry into an enclosed area or land through a durawall constitutes criminal trespass under s 132, not unlawful entry into premises under s 131; (3) Criminal trespass is a permissible verdict to a charge of unlawful entry into premises; (4) The conduct of breaking an obstacle (such as cardboard boxes) to enter through an opening satisfies the definition of 'enter' but must be assessed in context of what was entered.

The court observed that criminal trespass is a fairly minor offence and does not warrant the imposition of stiff sentences, noting that imprisonment is imposed only in deserving and fairly serious offences of criminal trespass. The court also noted that the common law offence of trespassing was not committed unless accompanied by violence or breach of peace, and could involve various types of property (house, apartment, office building, car, aircraft), but that s 132 of the Code only covers entry into land, as the legislature created a separate offence for unlawful entry into premises under s 131. The motivation for the criminal trespass offence is to protect property, prevent breaches of peace, and ensure peaceful possession of property.

This case is significant in Zimbabwean criminal law (applicable for comparative purposes in South African law) as it clarifies the distinction between 'unlawful entry into premises' under s 131 and 'criminal trespass' under s 132 of the Criminal Law (Codification and Reform) Act. It establishes that 'premises' must be a building or structure used for human habitation or storage with some degree of permanence, and that a durawall or enclosed area does not constitute 'premises'. The case demonstrates that entry into an enclosed area or land constitutes criminal trespass rather than unlawful entry into premises. It also provides guidance on appropriate sentencing for criminal trespass, recognizing it as a fairly minor offence that does not warrant stiff imprisonment sentences.