Abstract
The origins of the housebreaking crime (for the sake of brevity this term will be used throughout this note, rather than the bulkier (but more accurate) “housebreaking with the intent to commit a crime”) are inexorably bound up with the need to protect the dweller in his or her abode. From the earliest times the interest of a person in the safe and private habitation of his home has been treated reverently and regarded as deserving of special protection by the law. This concern is reflected by the fact that common-law jurisdictions have typically classified housebreaking as a crime against the habitation, which implies the right to “feel secure in one’s own home”. With the broadening of the ambit of the crime (variously referred to as burglary or breaking and entering in other jurisdictions) beyond merely protecting habitation, differing approaches have been taken in defining the nature of the premises that can be broken into. Thus in English law, to be a “building” within the definition of the crime (in terms of s 9(1) of the Theft Act, 1968) the structure is required to have some degree of permanence and an inhabited vehicle or vessel is specifically included in theterm “building” (s 9(4) of the Theft Act, 1968). In Canada, breaking and entering (in terms of s 348 of the Canadian Criminal Code, RSC 1985, c.C-46) include, within the understanding of a “structure” which can be broken into and entered, spaces enclosed by a fence, but not unenclosed spaces. The position in South Africa has not been definitively resolved, although it can at least be accepted that it is incorrect to state that the breaking into and entering can only be in respect of an immovable structure, and cannot be committed by breaking into a movable structure. What then is the South African position regarding the nature of a “premises” which is protected by the housebreaking crime?
Highlights
The origins of the housebreaking crime (for the sake of brevity this term will be used throughout this note, rather than the bulkier “housebreaking with the intent to commit a crime”) are inexorably bound up with the need to protect the dweller in his or her abode
Snyman comments that the reason for the acquittal in Jecha appears to be that the court proceeded from the assumptions that (i) since the caravan in this case still had its wheels it ought to be regarded as a movable, and (ii) that if the caravan was merely used for the storage of goods, it could not found housebreaking liability, since a structure used for this purpose is required to be immovable (2010 THRHR 160-1)
Snyman argues that the “common-sense” approach adopted in Madyo should be followed in assessing whether a structure constitutes “premises” for the purposes of the housebreaking crime (2010 THRHR 162)
Summary
The origins of the housebreaking crime (for the sake of brevity this term will be used throughout this note, rather than the bulkier (but more accurate) “housebreaking with the intent to commit a crime”) are inexorably bound up with the need to protect the dweller in his or her abode (see Hoctor “The Historical Antecedents of the Housebreaking Crime” 1999 Fundamina 97 101). After setting out the details of the Mavungu judgment, and the relevant legal rules relating to housebreaking and trespass, Snyman proceeds to discuss the specific problem which arose in the case: on what basis breaking into a caravan should found criminal liability (159). In this regard Snyman refers to the lack of a general principle which can be applied to determine whether a particular structure or building falls within the ambit of the housebreaking crime (160). Finding no useful guidance in the Mavungu decision in resolving this issue, Snyman sets out his suggested solution to this matter, consistent with the distinction proposed by De Wet
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