S v Maunatlala

• Jurisdiction: South Africa
• Citation: 1982 (1) SA 877 (T)

S v Maunatlala
1982 (1) SA 877 (T)

1982 (1) SA p877

Citation	1982 (1) SA 877 (T)
Court	Transvaal Provincial Division
Judge	Margo J and Schabort AJ
Heard	November 24, 1981
Judgment	November 24, 1981

Flynote : Sleutelwoorde A

Criminal law — Housebreaking with intent to steal and theft — What constitutes — Essential that there must have been not only a breaking but also an entering, ie an unlawful entry — Breaking out does not, as a B general rule, constitute breaking in — Accused entering a room through an open window, stealing a bicycle and departing by opening a locked door from the inside — Accused only guilty of theft.

Headnote : Kopnota

An essential component of the crime of housebreaking with intent to C steal and theft is that there must have been not only a breaking but also an entering: both in the old law and in the modern law, the gravamen of housebreaking is not so much the breaking as the unlawful entry. The general rule would seem to be, therefore, that a breaking out does not constitute housebreaking for the purposes of housebreaking with intent to steal and theft. However, there may be circumstances where a breaking out is in effect a breaking in.

D The accused had entered a room through an open window, stolen a bicycle and then departed by opening a locked door from the inside. He had been convicted of housebreaking with intent to steal and theft. On a review,

Held, that the conviction should be altered to one of theft. E

Case Information

Review.

Judgment

Margo J.

This Is a Review in which the Question Raised Is Whether the Requirements of the Crime of Housebreaking with Intent to Steal are F Satisfied When There Is NO Breaking into the Premises But a Breaking Out.

We are indebted to Mrs Kolbe, of the Attorney-General's staff, for her assistance in this case.

In Roman-Dutch law housebreaking was not generally regarded as a separate offence. Van der Linden, in Institutes of Holland book II chap G 6 s 2 (Juta's trans at 222), says that theft is simple or aggravated (gequalificeerd). Aggravated theft is committed when, inter alia, it is coupled with housebreaking. See also Matthaeus De Criminibus 47.1.3.9 and 47.2.1.1. Voet 47.2.9 says the same, but in another passage, 47.18.1, he treats it as a substantive offence. Van der Linden does not H define housebreaking, but Matthaeus, at 47.2.1.1. and also Voet 47.18.1, define effractores as persons who break open (effringunt) houses or barns or dig through walls with intent to steal. See R v Fourie; R v Louw 1907 ORC 58 per MAASDORP CJ at 59.

Our modern-day concept of housebreaking has been derived principally from the English common law of burglary and the early English statutes on housebreaking. See R v Fourie; R v Louw (supra) and R v Coetzee 1958 (2) SA 8 (T) per WILLIAMSON J at 10B - D. See also De Wet and Swanepoel Strafreg 3rd ed at 345 et seq. Nevertheless,

1982 (1) SA p878

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