ATTEMPTED HOUSEBREAKING WITH INTENT TO COMMIT A CRIME

Abstract

The Anglo-American crime of burglary is generally acknowledged as being the basis for the development of the South African crime of housebreaking with the intent to commit a crime. It has been widely accepted that the crime of burglary functions as “a rather unique type of attempt law”. The context for the development of the crime was the traditional limitations on the law of attempt. The South African version of the crime functions in a similar fashion as a sort of inchoate offence, in that it allows for the intervention of criminal
liability upon the merest intrusion of a part of the body (or instrument) into premises (following a “breaking” which may be of a technical nature – see discussion in Hoctor “The ‘Breaking’ Requirement in the Crime of Housebreaking with Intent” 1998 Obiter 201ff), provided that such intentional intrusion is accompanied by a further intent to commit an offence within.
Moreover, just as Common Law jurisdictions have typically sought to enable criminal intervention at an even earlier stage, through the use of the offence of possession of housebreaking implements, so too South African law has made use of such an offence in the earliest criminal legislation passed at the Cape and by the other South African colonies and states , and still does so today (in terms of the new statutory offence of “failure to give a satisfactory account of the possession of an implement or object”, contained
in s 82 of the General Law Third Amendment Act 129 of 1993, discussed in Hoctor “Statutory Housebreaking and Vehicle-breaking” 1999 Obiter 225ff).
As Snyman notes, this offence fulfils a valuable function in that it in effect functions to create a form of attempt to break into premises.