In South Africa, the crime of housebreaking is defined under the rule of common law, meaning there isn’t a specific set piece of legislature that provides for it. Instead, it is defined through the courts and history of case law. That makes the elements of the crime hard to pin down, however, according to SAPS, housebreaking is defined as “unlawfully and intentionally breaking into and entering a building or structure with the intention of committing some crime in it.”
Although the law around housebreaking in South Africa does draw from English Law, the development of a definition for this crime is still an ongoing process. Some scholars have expressed that the terminology used when defining housebreaking is too vague or overarching, and that is should be codified under legislature instead. However, there are minimum sentences set forth for the crime should someone be found guilty of housebreaking. A first offence can see someone in prison for a minimum of five years, seven years for a second offence and 10 years for a third offence.
Therefore housebreaking can be very vague, as what exactly constitutes breaking in remains tentative – is walking in through an unlocked door uninvited breaking in, or is it only breaking in when the door is broken down? Is it only unlawful should a crime occur after the break in? It is clear that the law around housebreaking is open to interpretation and would benefit greatly from a review.
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