The housebreaking crime to remain a common-law crime in South Africa.

Abstract

The crime of housebreaking with intent to commit a crime was unknown in Roman and Roman-Dutch law. This crime was treated as an aggravated form of theft. It emanates from the English law crimes of burglary and housebreaking. Its development was fraught with technicalities due to the fragmentary nature of its elements. However, the South African law followed its own developmental path even though the English law authorities contributed to its development by way of authorities. There have been calls for this crime to be abolished or statutorily regulated due to the difficulties or problems caused by some of its elements and due to a lack of overarching rationale for it. The purpose of this dissertation is to examine the „breaking‟ and „premises‟ requirements of the common-law crime of housebreaking with intent to commit a crime from South African law perspective. These two elements have been criticised for causing most difficulties or problems for this crime. The various journal articles, textbooks, relevant case law and statutory provisions on this topic are considered for this dissertation. After due consideration of all the relevant material, it becomes conspicuous that the South African law cannot afford not to have this crime as part of our law; thus the crime cannot be abolished. The dissertation concludes that the crime of housebreaking should remain a common-law crime as opposed to the proposal to have it becoming a statutory offence.