theft

CRIMES AGAINST PROPERTY

THEFT

Definition of Theft: (Snyman Criminal Law 5th ed (2008) at 483) A person commits theft if he unlawfully and intentionally

appropriates movable, corporeal property which:a) belongs to and is in the possession of another;b) belongs to another but is in the perpetrator’s own

possession; orc) belongs to the perpetrator but is in another’s

possession and such other person has a right to possess it which legally prevails against the perpetrator’s own right of possession;

provided that the intention to appropriate the property includes an intention permanently to deprive the person entitled to the possession of the property, of such property.

Essential Elements of the Crime:

1. Act of appropriation

2. in respect of Property

3. committed unlawfully and

4. Intentionally (including an intention to appropriate).

1. Classical Model (Roman law)• Theft = furtum • ‘contrectatio’: handling (act of theft)• Fraudulosa: unlawfulness / knowledge of unlawfulness• animus furandi: intention

2. The old English-Law model• Theft = larceny • committed when a person, fraudulently and without

claim of right made in good faith, takes or converts to his use anything capable of being stolen, with intent to deprive the owner thereof of his ownership or any person having any special property or interest therein of such property or interest.

3. The Appropriation Concept model

Descriptions of the Crime:

Forms of conduct contained in the definition:

a) Removal of Property:

XY’s Property

in Y’s possession

Removed by


b) Embezzlement:

XY’s Property

in X’s possession or

control

Appropriated by


c) Arrogation of possession:

XX’s Property

in Y’s possession

(where Y’s right to possession

prevails against the owner (X))

Arrogated by


d) Theft of Credit, including unlawful appropriation of trust funds


1. Act of appropriation• S v Boesak 2000 (1) SACR 633 (SCA) para 97• 2 components to appropriation:

i. negative component: depriving owner / possessor of the property

ii. positive component: accused’s exercise of the rights of an owner in respect of the property in the place of the true owner/possessor.


2. Property - things absolutely incapable of being stolen:

i) Immovable

ii) Incorporeal :• design or idea – R v Cheeseborough 1948 (3)

SA 756 (T)• Board and lodging - R v Renaud 1922 CPD 322• Electricity / energy – S v Mintoor 1996 (1) SACR

514 (C).

Money: S v Kotze 1965 1 SA 118 (A); S v Graham 1975 (3) SA 569 (A)

Shares: S v Harper 1981 (2) SA 638 (D)


2. Property :

iii) In commercio: not:

• Res communes – absolutely incapable• Res publicae – absolutely incapable• Res derelictae – relatively incapable • Res nullius – relatively incapable

• Game Theft Act 105 of 1991: s.2(1)(a)• S v Mdaba 2002 (1) SACR 556 (E)

• Res sua – relatively incapable


3. Unlawfulness

• negotiorum gestio

• Necessity

• Statutory authority

• Consent

• De minimus rule


4. Intention

a) in respect of the property

b) in respect of unlawfulness


• 4. IntentionC) IN RESPECT OF THE ACT:

1.)Motive irrelevant

2.)Intention permanently to deprive• S v Sibiya 1955 (4) SA 247 (A)• Furtum usus – s. 1 of Act 50 of 1956

3.) Intention to Appropriate – Also 2 components:

(i) Negative – to permanently deprive

(ii) Positive– S v M 1982 (1) SA 309 (O)

Fungible Things

• Unauthorised borrowing

• Money?

THEFT IS A CONTINUING CRIME

• continues to be committed as long as the stolen property remains in the possession of:– the thief– somebody who has participated in the theft, or– somebody who acts on behalf of such a person

• 2 important consequences:

(i) jurisdiction

(ii) accessories after the fact / accomplices

• S v Cassiem 2001 (1) SACR 489 (SCA)

Different Forms of Theft:

• Removal of a Thing – e.g. self-service shops – S v M 1982 (1) SA 309 (O).

• Embezzlement

• Unlawful Arrogation of Possession


• Theft of Money

- cash

- credit

- breach of obligation

- S v Sibiya 1955 (4) SA 247 (A) at 261.

- S v Graham 1975 (3) SA 569 (A)


• Theft of Credit

1.Theft of Trust Funds: - trust relationship vs debtor-creditor relationship: test: did the person entitled (X) visualize & expressly/impliedly authorise that Y should use the money without retaining an equivalent liquid fund?

- S v Boesak 2000 (1) SACR 633 (SCA) at para 99.

2. Defence

- equivalent liquid fund – S v Visagie 1991 (1) SA 177 (A) at 182F-G

3. Depositories

4. Theft by Dishonest Accounting

5. Short Changing - S v Scoulides 1956 (2) SA 388 (A) at 394.

6. Overpayments - S v Graham 1975 (3) SA 569 (A) at 573.

7. Payments Made in Advance

theft

Documents