S v GARANEWAKO 2010 (2) ZLR 395 (H)

Flynote

c Criminal law - offences under Criminal Law Code - unlawful entry into premises - meaning of "premises" - premises do not include land on which a building is situated - correct charge to bring one of unlawfully entering onto such land

Headnote

▷ The accused was convicted of unlawful entry into premises, in contravention of s 131 of the Criminal Law Code [Chapter 9:23]. He had opened the sliding gate of the complainant's yard and entered the yard, where he was discovered. On review: Held, that the conviction was wrong. "Premises", for the purposes of s 131 of the Code, means any movable or immovable building or structure used for human habitation or storage. The crime of unlawful entry into premises is nothing more than a codified version of the old offence of housebreaking with intent to commit a specified crime within the premises so broken into. The mere opening of a sliding gate of a perimeter wall surrounding the yard of a dwelling premises and only entering that yard, as happened in casu, can never legally found the crime of unlawful entry into premises. There is patently a world of difference between unlawful entry into premises and 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 or entrances, either barred, or capable of being barred, by a gate or other means (what is commonly referred to as a yard). The correct charge should therefore have been criminaltrespass as defined in s 132(1)(a) of the Code.