, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
QUESTION 1
a) We live in an “information age,” and the question that often arises is whether information
can be stolen. Refer to the common law definition of “theft” and critically discuss whether the
law in South Africa has adapted to keep up with technological advancements. Discuss
comparatively by referring to the positions in other jurisdictions and include case law, legislation,
and academic commentary where applicable.
The Theft of Information in South African Law: A Critical Analysis
1. Introduction
In an era increasingly defined by digital assets and intangible wealth, the question of whether
information can be "stolen" has become a pressing legal concern. The traditional common law
definition of theft, rooted in Roman-Dutch principles, was designed to protect tangible, corporeal
property. This raises a fundamental question: has South African law adapted to keep pace with
technological advancements? This essay critically examines the common law definition of theft and
evaluates whether the legal principles in South Africa provide for the theft of information, with
comparative reference to other jurisdictions and relevant case law, legislation, and academic
commentary.
2. The Common Law Definition of Theft and its Limitations
In South African law, theft is traditionally defined as the unlawful and intentional appropriation of a
movable, corporeal thing belonging to another and capable of being stolen, with the intention of
permanently depriving the owner thereof.⁽¹⁾ The object of theft is thus limited to corporeal
property—tangible, physical objects that can be physically possessed and controlled. This is the
fundamental stumbling block to prosecuting information theft under common law, as information,
data, and intellectual property are intangible in nature.
2.1 The Principle of Corporealitas
Academic commentary confirms the traditional position. As academic commentary notes:
The traditional view is that theft is the unauthorised contrectatio with the intention to steal property
which is capable of being stolen. In relation to property that is capable of being stolen, a distinction
is made between property that is absolutely and those that are relatively incapable of being stolen.
The examples of the former category are immovable properties, incorporeal properties (an idea or
design) and properties that are common to all (air, water of the sea and public streams).⁽²⁾
This principle requires the property to be movable and corporeal. Information, being intangible, is
traditionally incapable of being stolen.⁽³⁾
[¹] LCR4805 Study Guide (2019) 27. See also Information and Communications Technology Law (Van der Merwe et al, 2016) 63–64, where
the traditional definition of theft is set out.
[²] Information and Communications Technology Law (Van der Merwe et al, 2016) 69. See also Snyman Criminal Law (2002) 498, noting
that "the object of theft must be a corporeal thing."
[³] LCR4805 Study Guide (2019) 28, discussing the South African Law Commission's finding that "the extension of existing common-law
crimes by the courts was unlikely and that legislation was required."
, 2.2 The Act of Contrectatio
The requirement of contrectatio—the physical removal of the property from the owner's
possession—poses a further challenge. When information is copied, the original owner is not
dispossessed of the information; it is merely duplicated. The owner may never even know that the
data was accessed or copied.⁽⁴⁾ Thus, the owner's control over the original information is not
permanently interfered with—a requirement for theft.
2.3 The Continuing Crime Doctrine
Our common law developed the doctrine of theft as a continuing crime (delictum continuum). As
academic commentary explains:
the theft continues as long as the stolen property remains in the possession of the thief or of
some person who was a party to the theft or of some person acting on behalf of or even,
possibly, in the interests of the original thief or party to the theft.⁽⁵⁾
This allows prosecution where the original theft occurred elsewhere but the stolen property is
subsequently possessed in South Africa.⁽⁶⁾ However, it does not assist with information theft, as
information does not "remain" in possession of the thief; rather, it is duplicated.
3. Case Law Demonstrating Limitations
3.1 S v Howard (The "Edgars Hacking" Case)
S v Howard serves as a pivotal illustration of the common law's flexibility yet shortcomings. Howard,
a disgruntled former employee, sabotaged the computerised point-of-sale systems of Edgars and Jet
Stores, causing millions in losses.⁽⁷⁾ The court considered whether the accused could be convicted of
malicious injury to property—a crime normally requiring physical damage to tangible property.
The court found a conviction possible based on the fact that the hard drive had sustained physical
damage during attempts to reboot. Academic commentary explains this reasoning:
The Court stated in Whitely: "What the Act requires to be proved is that tangible property has been
damaged, not necessarily that the damage itself is tangible. There can be no doubt that the magnetic
particles upon the metal discs were a part of the discs... there would be damage."⁽⁸⁾
The court also remarked in obiter dictum that "the property which is damaged does no longer need to
have a physical existence."⁽⁹⁾
Despite the conviction, the case highlights the common law's struggle with intangibles. The
prosecution succeeded only because the hard drive itself was physically damaged, not because the
intangible data was "stolen" or "damaged" as such.⁽¹⁰⁾
[⁴] Information and Communications Technology Law (Van der Merwe et al, 2016) 70–71, noting that "data are different from tangible
property... the owner is not necessarily dispossessed of the original contents of the information."
[⁵] S v Cassiem as quoted in Information and Communications Technology Law (Van der Merwe et al, 2016) 69. See also Burchell
Principles of Criminal Law 782.
[⁶] Information and Communications Technology Law (Van der Merwe et al, 2016) 69–70, discussing the application of continuing crime
doctrine to cybercrime.
[⁷] LCR4805 Study Guide (2019) 27–28. See also S v Howard (unreported case no. 41/258/02, Johannesburg regional magistrates' court).
[⁸] Information and Communications Technology Law (Van der Merwe et al, 2016) 74–75, quoting Whitely.
[⁹] LCR4805 Study Guide (2019) 27, noting that "the court also remarked in an obiter dictum that it is wholly correct to contend that the
property which is damaged does no longer need to have a physical existence."
[¹⁰] Information and Communications Technology Law (Van der Merwe et al, 2016) 74–76.
QUESTION 1
a) We live in an “information age,” and the question that often arises is whether information
can be stolen. Refer to the common law definition of “theft” and critically discuss whether the
law in South Africa has adapted to keep up with technological advancements. Discuss
comparatively by referring to the positions in other jurisdictions and include case law, legislation,
and academic commentary where applicable.
The Theft of Information in South African Law: A Critical Analysis
1. Introduction
In an era increasingly defined by digital assets and intangible wealth, the question of whether
information can be "stolen" has become a pressing legal concern. The traditional common law
definition of theft, rooted in Roman-Dutch principles, was designed to protect tangible, corporeal
property. This raises a fundamental question: has South African law adapted to keep pace with
technological advancements? This essay critically examines the common law definition of theft and
evaluates whether the legal principles in South Africa provide for the theft of information, with
comparative reference to other jurisdictions and relevant case law, legislation, and academic
commentary.
2. The Common Law Definition of Theft and its Limitations
In South African law, theft is traditionally defined as the unlawful and intentional appropriation of a
movable, corporeal thing belonging to another and capable of being stolen, with the intention of
permanently depriving the owner thereof.⁽¹⁾ The object of theft is thus limited to corporeal
property—tangible, physical objects that can be physically possessed and controlled. This is the
fundamental stumbling block to prosecuting information theft under common law, as information,
data, and intellectual property are intangible in nature.
2.1 The Principle of Corporealitas
Academic commentary confirms the traditional position. As academic commentary notes:
The traditional view is that theft is the unauthorised contrectatio with the intention to steal property
which is capable of being stolen. In relation to property that is capable of being stolen, a distinction
is made between property that is absolutely and those that are relatively incapable of being stolen.
The examples of the former category are immovable properties, incorporeal properties (an idea or
design) and properties that are common to all (air, water of the sea and public streams).⁽²⁾
This principle requires the property to be movable and corporeal. Information, being intangible, is
traditionally incapable of being stolen.⁽³⁾
[¹] LCR4805 Study Guide (2019) 27. See also Information and Communications Technology Law (Van der Merwe et al, 2016) 63–64, where
the traditional definition of theft is set out.
[²] Information and Communications Technology Law (Van der Merwe et al, 2016) 69. See also Snyman Criminal Law (2002) 498, noting
that "the object of theft must be a corporeal thing."
[³] LCR4805 Study Guide (2019) 28, discussing the South African Law Commission's finding that "the extension of existing common-law
crimes by the courts was unlikely and that legislation was required."
, 2.2 The Act of Contrectatio
The requirement of contrectatio—the physical removal of the property from the owner's
possession—poses a further challenge. When information is copied, the original owner is not
dispossessed of the information; it is merely duplicated. The owner may never even know that the
data was accessed or copied.⁽⁴⁾ Thus, the owner's control over the original information is not
permanently interfered with—a requirement for theft.
2.3 The Continuing Crime Doctrine
Our common law developed the doctrine of theft as a continuing crime (delictum continuum). As
academic commentary explains:
the theft continues as long as the stolen property remains in the possession of the thief or of
some person who was a party to the theft or of some person acting on behalf of or even,
possibly, in the interests of the original thief or party to the theft.⁽⁵⁾
This allows prosecution where the original theft occurred elsewhere but the stolen property is
subsequently possessed in South Africa.⁽⁶⁾ However, it does not assist with information theft, as
information does not "remain" in possession of the thief; rather, it is duplicated.
3. Case Law Demonstrating Limitations
3.1 S v Howard (The "Edgars Hacking" Case)
S v Howard serves as a pivotal illustration of the common law's flexibility yet shortcomings. Howard,
a disgruntled former employee, sabotaged the computerised point-of-sale systems of Edgars and Jet
Stores, causing millions in losses.⁽⁷⁾ The court considered whether the accused could be convicted of
malicious injury to property—a crime normally requiring physical damage to tangible property.
The court found a conviction possible based on the fact that the hard drive had sustained physical
damage during attempts to reboot. Academic commentary explains this reasoning:
The Court stated in Whitely: "What the Act requires to be proved is that tangible property has been
damaged, not necessarily that the damage itself is tangible. There can be no doubt that the magnetic
particles upon the metal discs were a part of the discs... there would be damage."⁽⁸⁾
The court also remarked in obiter dictum that "the property which is damaged does no longer need to
have a physical existence."⁽⁹⁾
Despite the conviction, the case highlights the common law's struggle with intangibles. The
prosecution succeeded only because the hard drive itself was physically damaged, not because the
intangible data was "stolen" or "damaged" as such.⁽¹⁰⁾
[⁴] Information and Communications Technology Law (Van der Merwe et al, 2016) 70–71, noting that "data are different from tangible
property... the owner is not necessarily dispossessed of the original contents of the information."
[⁵] S v Cassiem as quoted in Information and Communications Technology Law (Van der Merwe et al, 2016) 69. See also Burchell
Principles of Criminal Law 782.
[⁶] Information and Communications Technology Law (Van der Merwe et al, 2016) 69–70, discussing the application of continuing crime
doctrine to cybercrime.
[⁷] LCR4805 Study Guide (2019) 27–28. See also S v Howard (unreported case no. 41/258/02, Johannesburg regional magistrates' court).
[⁸] Information and Communications Technology Law (Van der Merwe et al, 2016) 74–75, quoting Whitely.
[⁹] LCR4805 Study Guide (2019) 27, noting that "the court also remarked in an obiter dictum that it is wholly correct to contend that the
property which is damaged does no longer need to have a physical existence."
[¹⁰] Information and Communications Technology Law (Van der Merwe et al, 2016) 74–76.
