The State v Walter Garanewako

On 6 April 2010, at around 03:00 hours, the complainant entered her homestead at Number 133 Svinurai Phase 1, Dema, and found her sliding gate opened. Upon entering the gate, she found the accused standing near her motor vehicle in the yard. When she called to him, he remained quiet, moved towards her, and appeared to be in a drunken state, stammering. He was subsequently arrested. The accused had entered the complainant's yard enclosed by a durawall by opening the sliding gate, but he did not enter the dwelling house itself, being interrupted while in the yard.

• Whether an enclosed yard constitutes 'premises' for purposes of the offence of unlawful entry into premises under s 131 of the Criminal Law (Codification and Reform) Act [Cap 9:23]
• What is the proper distinction between unlawful entry into premises (s 131) and criminal trespass (s 132) of the Criminal Law (Codification and Reform) Act
• Whether the conviction and sentence imposed were lawful given the facts of the case

The court refused to certify the proceedings as being in accordance with true and substantial justice. The conviction and sentence were not confirmed. The judgment was to be brought to the attention of the acting chief magistrate for circulation to all magisterial stations to avoid recurrence of similar errors.

For purposes of s 131 of the Criminal Law (Codification and Reform) Act [Cap 9:23], 'premises' means any movable or immovable building or structure used for human habitation or storage, and does not include an enclosed yard or land. Entry into a yard by opening a gate, without entering the actual dwelling house or storage structure, does not constitute unlawful entry into premises under s 131, but rather constitutes criminal trespass under s 132. The offence of unlawful entry into premises is the codified version of the old offence of housebreaking with intent and requires actual entry into a building or structure, not merely onto land or into an enclosed area.

The court observed that a sizeable number of magistrates have no understanding of the distinction between unlawful entry into premises and criminal trespass, as evidenced by a substantial number of review matters. The court noted that the scrutinising Senior Regional Magistrate consulted with fellow magistrates and found widespread uncertainty on this issue. The court expressed hope that the judgment would be circulated to all magisterial stations to prevent recurrence of similar errors. The court also commented that the legislature's deliberate use of the phrase "in the premises" rather than "on the premises" in s 131(2)(b) was significant in understanding the scope of the offence.

This case provides important guidance on the distinction between unlawful entry into premises (s 131) and criminal trespass (s 132) under Zimbabwe's Criminal Law (Codification and Reform) Act. The judgment clarifies that 'premises' for purposes of unlawful entry must be a building or structure used for human habitation or storage, and not merely an enclosed yard or land. The case addresses widespread confusion among magistrates regarding these two offences and provides authoritative interpretation of statutory definitions. It serves as an important precedent for proper charging decisions in criminal cases involving unauthorized entry.