CONSTRUCTIVE BREAKING − A CONSTRUCTIVE PART OF THE HOUSEBREAKING CRIME?

Abstract

Section 9 of the Theft Act of 1968 heralded a new formulation of the crime of burglary in English law, in that the unlawful conduct associated with the crime was changed from the previous elements of breaking and entering, to the requirement of a trespassory entry. Thus the element of breaking was dispensed with. Prior to the passing of the Theft Act, the English crime of burglary, along with other offences involving breaking and entering, was governed by sections 25-27 of the Larceny Act of 1916, which in turn fell to be interpreted and applied in terms of the abundance of common-law precedent. The common-law conception of the term “breaking” included both actual breaking and constructive breaking. The former notion involved the displacement of some obstacle in order to facilitate the unlawful entry into the premises: drawing a bolt, turning a key, lifting a latch, raising a cellar flap or window sash (Turner Kenny’s Outlines of Criminal Law 18ed (1962) 246). Constructive breaking may be defined as “obtaining an entrance into the [premises] by any threat or artifice used for that purpose, or by collusion with any person in the [premises]” (Stephen and Stephen Stephen’s Digest of the Criminal Law 5ed (1894) 283; see also Turner Russell on Crime 11ed (1958) Vol 2 919ff; Palmer and Palmer Harris’s Criminal Law 20ed (1960) 332; and Cross and Jones An Introduction to Criminal Law 5ed (1964) 256).
Whilst it is generally accepted that the crime of housebreaking with intent to commit a crime (hereinafter “the housebreaking crime”) in South African law has its roots in the English common law rather than the Roman-Dutch law (Snyman Criminal Law 4ed (2002) 540; and R v Fourie; R v Louw 1907 ORC 58 59), it has been doubted whether the common-law notion of constructive breaking has been received into South African law (Milton South African Criminal Law and Procedure Vol II: Common-law Crimes 3ed (1996) 800). Moreover, Gardiner and Lansdown have stated that the “doctrine of constructive breaking … would probably not be approved by South African courts if the matter came into question” (Lansdown, Hoal and Lansdown Gardiner and Lansdown’s South African Criminal Law and Procedure Vol II: Specific Offences 6ed (1957) 1720). It is proposed to examine whether constructive breaking has indeed been introduced into South African law, by examining the three aspects of constructive breaking set out in the above definition: entry by threat or duress, entry by artifice or fraud, and entry by collusion with another within the premises.