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 perpetrators own possession; or c) belongs to the perpetrator but is in anothers possession and such other person has a right to possess it which legally prevails against the perpetrators 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. 2. 3. 4. Act of appropriation in respect of Property committed unlawfully and Intentionally (including an intention to appropriate).

Descriptions of the Crime:

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

Forms of conduct contained in the definition:

a) Removal of Property:
Ys Property in Ys possession

Removed by

Forms of conduct contained in the definition:

b) Embezzlement:
Ys Property in Xs possession or control

Appropriated by

Forms of conduct contained in the definition:

c) Arrogation of possession:
Xs Property in Ys possession
(where Ys right to possession prevails against the owner (X))

Arrogated by

Forms of conduct contained in the definition:

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

Essential Elements of the Crime:

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: accuseds exercise of the rights of an owner in respect of the property in the place of the true owner/possessor.

Essential Elements of the Crime:

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)

Essential Elements of the Crime:

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

Essential Elements of the Crime:

3. Unlawfulness negotiorum gestio Necessity Statutory authority Consent De minimus rule

Essential Elements of the Crime:

4. Intention a) in respect of the property b) in respect of unlawfulness

Essential Elements of the Crime:

4. Intention
C) 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

Different Forms of Theft:

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)

Different Forms of Theft:

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