WHICH STRUCTURES DOES THE HOUSEBREAKING CRIME PROTECT?

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 the
term “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?