LCR4805
ASSIGNMENT 2 SEMESTER 2 2025
UNIQUE NO. 801278
DUE DATE: SEPTEMBER 2025
, lOMoARcPSD|18222662
Selected Private and Criminal Law Principles of the Internet
Question 1
Introduction
The rise of the digital economy has led to profound legal challenges concerning the
protection of information. Traditional South African criminal law, rooted in common law
definitions of theft, has historically been premised on the unlawful appropriation of
corporeal property. However, in an age where intangible assets such as data and
information hold immense economic value, questions arise as to whether the existing
legal framework adequately criminalises the misappropriation of information. This essay
examines the South African common law definition of theft, assesses whether it
accommodates the theft of information, and evaluates how statutory interventions and
comparative jurisdictions have sought to address this challenge.
The Common Law Definition of Theft in South Africa
Under South African common law, theft is defined as the unlawful and intentional
appropriation of another’s movable corporeal property with the intention of permanently
depriving the owner of such property.^1 The core elements are:
1. The object must be corporeal property.
2. There must be unlawful appropriation.
3. There must be intent to permanently deprive.
This corporeality requirement excludes intangible assets such as electricity, information,
and data.^2
In S v Mintoor the Cape court confirmed that intangible things, unless embodied in a
physical medium, do not qualify as “property” for the purposes of theft.^3 Similarly, in S
v Graham the Appellate Division emphasised that incorporeal property cannot be stolen
under common law.^4
, lOMoARcPSD|18222662
Thus, at common law information itself cannot be “stolen”, although its physical
container (USB, CD, printed document) can.
Judicial Attempts to Stretch the Definition
Courts have occasionally shown flexibility. In R v Scoulides the Appellate Division held
that electricity could be the subject of theft despite its intangible nature.^5 This judicial
creativity, however, has not been extended to information.
Legislative Developments in South Africa
Recognising the limitations of common law, the South African legislature introduced
statutes to address cyber-offences:
Electronic Communications and Transactions Act 25 of 2002 (ECTA)
recognises the legal validity of data messages but does not criminalise “data
theft” directly.^6
Cybercrimes Act 19 of 2020 criminalises conduct resembling theft of
information:
o s 2 – unlawful access to data;
o s 3 – unlawful interception of data;
o s 8 – unlawful acquisition of passwords/access codes;
o s 11 – cyber fraud.^7
Thus, while theft remains confined to corporeal property, the Cybercrimes Act
effectively criminalises “information theft” under statutory offences.
Comparative Jurisdictions
United Kingdom: In Oxford v Moss a student who obtained an exam paper in
advance was acquitted because confidential information was not “property” under
the Theft Act 1968.^8 However, the Computer Misuse Act 1990 now
criminalises unauthorised access and modification of data.
ASSIGNMENT 2 SEMESTER 2 2025
UNIQUE NO. 801278
DUE DATE: SEPTEMBER 2025
, lOMoARcPSD|18222662
Selected Private and Criminal Law Principles of the Internet
Question 1
Introduction
The rise of the digital economy has led to profound legal challenges concerning the
protection of information. Traditional South African criminal law, rooted in common law
definitions of theft, has historically been premised on the unlawful appropriation of
corporeal property. However, in an age where intangible assets such as data and
information hold immense economic value, questions arise as to whether the existing
legal framework adequately criminalises the misappropriation of information. This essay
examines the South African common law definition of theft, assesses whether it
accommodates the theft of information, and evaluates how statutory interventions and
comparative jurisdictions have sought to address this challenge.
The Common Law Definition of Theft in South Africa
Under South African common law, theft is defined as the unlawful and intentional
appropriation of another’s movable corporeal property with the intention of permanently
depriving the owner of such property.^1 The core elements are:
1. The object must be corporeal property.
2. There must be unlawful appropriation.
3. There must be intent to permanently deprive.
This corporeality requirement excludes intangible assets such as electricity, information,
and data.^2
In S v Mintoor the Cape court confirmed that intangible things, unless embodied in a
physical medium, do not qualify as “property” for the purposes of theft.^3 Similarly, in S
v Graham the Appellate Division emphasised that incorporeal property cannot be stolen
under common law.^4
, lOMoARcPSD|18222662
Thus, at common law information itself cannot be “stolen”, although its physical
container (USB, CD, printed document) can.
Judicial Attempts to Stretch the Definition
Courts have occasionally shown flexibility. In R v Scoulides the Appellate Division held
that electricity could be the subject of theft despite its intangible nature.^5 This judicial
creativity, however, has not been extended to information.
Legislative Developments in South Africa
Recognising the limitations of common law, the South African legislature introduced
statutes to address cyber-offences:
Electronic Communications and Transactions Act 25 of 2002 (ECTA)
recognises the legal validity of data messages but does not criminalise “data
theft” directly.^6
Cybercrimes Act 19 of 2020 criminalises conduct resembling theft of
information:
o s 2 – unlawful access to data;
o s 3 – unlawful interception of data;
o s 8 – unlawful acquisition of passwords/access codes;
o s 11 – cyber fraud.^7
Thus, while theft remains confined to corporeal property, the Cybercrimes Act
effectively criminalises “information theft” under statutory offences.
Comparative Jurisdictions
United Kingdom: In Oxford v Moss a student who obtained an exam paper in
advance was acquitted because confidential information was not “property” under
the Theft Act 1968.^8 However, the Computer Misuse Act 1990 now
criminalises unauthorised access and modification of data.
