Study unit 1- Crimes against property
A. Theft
B. Removal of property for use
C. Robbery
D. Fraud
E. Malicious injury to property and arson
F. Housebreaking with intention to commit a crime
A. THEFT
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
c) 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
Elements:
1. An act of appropriation
2. In respect of a certain type of property
3. Which takes place unlawfully
4. Intentionally
1. Act:
Voluntary act- contrectatio
A removal
A physical handling or touching of the property or something tantamount to a
physical dealing
Removal out of control (exclusion from control- negative act of assumption)
Assumption or appropriation of control (Positive act of assumption)
= Act of appropriation
2. Property:
The conduct must be aimed at property- movable property
Excludes-
Immovable property
Incorporeals
Res nullins
Res derelictae
, Own property- res sua
3. Unlawfulness:
Ex post facto test-
Determines the legal convictions of society with regards to the actions of the
accused
4. Intent:
Requires furtive intent-
Goal:
Intent to terminate the owner’s enjoyment of his rights
Deprive owner of the whole benefit of his ownership
= Permanent deprivation
Forms of theft:
1. The removal of property
Removal of another person’s lawful possession
2. Embezzlement
Appropriates someone else’s property which is in X’s possession
3. Arrogation of possession
Removes own property from other person’s lawful possession
4. Theft of credit, including the unlawful appropriation of trust funds
Theft of incorporeal thing
Theft of money in the form of credit
Act of appropriation:
Consists of any act in respect of property whereby-
Deprives the lawful owner or possessor of his property
Himself exercises the rights of an owner in respect of the property
X behaves as if he is the owner or person entitled to the property but he is not and exercises
control in place of the person actually having the right to
Two components of an act of appropriation-
Negative component-
Exclusion of Y from his property
Positive component-
X’s actual exercise of the rights of an owner in respect of the property in place of Y
Both components need to be present for it to be a completed act of appropriation
Theft can also be committed through the instrumentality of another
Property (things) capable of being stolen:
, Movable property
Corporeal property
Property must be in commercio- capable of being sold
The thing must belong to someone else
Immovable property, res communes- property belonging to everyone, res derelictae-
property abandoned by its owner and res nullius- property belonging to nobody= Cannot
be stolen
Unlawfulness:
Grounds of justification that excludes unlawfulness-
a) Consent
b) Presumed consent
c) Necessity
Consent is used the most
Intention:
Intention to steal- animus furandi
Boesak case- The intent to steal is present where a person-
a) Intentionally effects an appropriation
b) Intending to deprive the owner permanently of his property or control over his
property
c) Knowing that the property is capable of being stolen
d) Knowing that he is acting unlawfully in taking it
Common theft:
X removes property that belongs to Y
Appropriation must be accompanied by a removal of the property from somebody else’s
possession
Decisive criterion is whether X succeeded in gaining control over the property
Embezzlement:
X appropriates another’s property which is already in his possession
Possessor commits theft as soon as he commits an act of appropriation in respect of
the property with the necessary intention to appropriate.
X’s act does not have to consist of a positive and negative component
Unlawful arrogation of possession- furtum possessionis:
Owner steals his own thing by removing it from the possession of a person who has a
right to possess it which legally prevails over the owner’s right of possession
Pledgee or somebody who has a lien over the property to secure payment of a debt
Theft of credit, including the unlawful appropriation of trust funds:
, a) Theft of credit which is not entrusted to somebody-
Z- opens a cheque account and deposits R500
Bank- owner of the R500
Z- has the right to claim the money from the bank
Z- writes a cheque to Y for R100 and instructs the bank to pay Y the R100
X- intercepts the cheque and the bank pays the R100 into X’s account
Z- can claim the R100 from the bank
X can also commit theft of credit for the unlawful possession of Y’s credit card
X- uses the card and then commits fraud for the misrepresentation that the card belongs
to him
b) Theft of credit entrusted to somebody-
Credit entrusted to X to be applied by him for a certain purpose- contrary to
conditions
X- applies funds to another purpose mostly for his own benefit
X- commits theft despite the fact that what he steals is not corporeal property nor
property belonging to somebody
Also breach of contract
c) Unauthorised appropriation of cash entrusted to somebody-
Y- gives X cash with instructions to use it to pay Y’s debt
X- receives money and spends it otherwise
X- theft, uses it for his own advantage
X- received money “in trust”
Y- buys something from the shop and gives X more money than what the item costs
X- needs to give Y change but gives him less than he should get
X- under an obligation to give the correct amount of change to Y
d) Unauthorised appropriation of credit entrusted to X-
Y- widow, mental faculties diminishing fast because of old age
X- administer of Y’s financial affairs
Z- writes cheque to Y for Y’s benefit
X- receives cheque on Y’s behalf and keeps the cheque to himself
X- theft for converting funds for his own private use
Defences for X-
1. The existence of a liquid fund:
X- holds money in trust on Y’s behalf or receives money from Y for a specific purpose
X- uses money for different purpose
X does not commit theft if at the time he spends the money he has a liquid fund
which enables him to repay the money to Y
Liquid fund- money can be withdrawn without delay
2. Money received as part of debtor-creditor relationship:
Y- lends money to X
X- receives money as part of a debtor-creditor relationship
A. Theft
B. Removal of property for use
C. Robbery
D. Fraud
E. Malicious injury to property and arson
F. Housebreaking with intention to commit a crime
A. THEFT
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
c) 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
Elements:
1. An act of appropriation
2. In respect of a certain type of property
3. Which takes place unlawfully
4. Intentionally
1. Act:
Voluntary act- contrectatio
A removal
A physical handling or touching of the property or something tantamount to a
physical dealing
Removal out of control (exclusion from control- negative act of assumption)
Assumption or appropriation of control (Positive act of assumption)
= Act of appropriation
2. Property:
The conduct must be aimed at property- movable property
Excludes-
Immovable property
Incorporeals
Res nullins
Res derelictae
, Own property- res sua
3. Unlawfulness:
Ex post facto test-
Determines the legal convictions of society with regards to the actions of the
accused
4. Intent:
Requires furtive intent-
Goal:
Intent to terminate the owner’s enjoyment of his rights
Deprive owner of the whole benefit of his ownership
= Permanent deprivation
Forms of theft:
1. The removal of property
Removal of another person’s lawful possession
2. Embezzlement
Appropriates someone else’s property which is in X’s possession
3. Arrogation of possession
Removes own property from other person’s lawful possession
4. Theft of credit, including the unlawful appropriation of trust funds
Theft of incorporeal thing
Theft of money in the form of credit
Act of appropriation:
Consists of any act in respect of property whereby-
Deprives the lawful owner or possessor of his property
Himself exercises the rights of an owner in respect of the property
X behaves as if he is the owner or person entitled to the property but he is not and exercises
control in place of the person actually having the right to
Two components of an act of appropriation-
Negative component-
Exclusion of Y from his property
Positive component-
X’s actual exercise of the rights of an owner in respect of the property in place of Y
Both components need to be present for it to be a completed act of appropriation
Theft can also be committed through the instrumentality of another
Property (things) capable of being stolen:
, Movable property
Corporeal property
Property must be in commercio- capable of being sold
The thing must belong to someone else
Immovable property, res communes- property belonging to everyone, res derelictae-
property abandoned by its owner and res nullius- property belonging to nobody= Cannot
be stolen
Unlawfulness:
Grounds of justification that excludes unlawfulness-
a) Consent
b) Presumed consent
c) Necessity
Consent is used the most
Intention:
Intention to steal- animus furandi
Boesak case- The intent to steal is present where a person-
a) Intentionally effects an appropriation
b) Intending to deprive the owner permanently of his property or control over his
property
c) Knowing that the property is capable of being stolen
d) Knowing that he is acting unlawfully in taking it
Common theft:
X removes property that belongs to Y
Appropriation must be accompanied by a removal of the property from somebody else’s
possession
Decisive criterion is whether X succeeded in gaining control over the property
Embezzlement:
X appropriates another’s property which is already in his possession
Possessor commits theft as soon as he commits an act of appropriation in respect of
the property with the necessary intention to appropriate.
X’s act does not have to consist of a positive and negative component
Unlawful arrogation of possession- furtum possessionis:
Owner steals his own thing by removing it from the possession of a person who has a
right to possess it which legally prevails over the owner’s right of possession
Pledgee or somebody who has a lien over the property to secure payment of a debt
Theft of credit, including the unlawful appropriation of trust funds:
, a) Theft of credit which is not entrusted to somebody-
Z- opens a cheque account and deposits R500
Bank- owner of the R500
Z- has the right to claim the money from the bank
Z- writes a cheque to Y for R100 and instructs the bank to pay Y the R100
X- intercepts the cheque and the bank pays the R100 into X’s account
Z- can claim the R100 from the bank
X can also commit theft of credit for the unlawful possession of Y’s credit card
X- uses the card and then commits fraud for the misrepresentation that the card belongs
to him
b) Theft of credit entrusted to somebody-
Credit entrusted to X to be applied by him for a certain purpose- contrary to
conditions
X- applies funds to another purpose mostly for his own benefit
X- commits theft despite the fact that what he steals is not corporeal property nor
property belonging to somebody
Also breach of contract
c) Unauthorised appropriation of cash entrusted to somebody-
Y- gives X cash with instructions to use it to pay Y’s debt
X- receives money and spends it otherwise
X- theft, uses it for his own advantage
X- received money “in trust”
Y- buys something from the shop and gives X more money than what the item costs
X- needs to give Y change but gives him less than he should get
X- under an obligation to give the correct amount of change to Y
d) Unauthorised appropriation of credit entrusted to X-
Y- widow, mental faculties diminishing fast because of old age
X- administer of Y’s financial affairs
Z- writes cheque to Y for Y’s benefit
X- receives cheque on Y’s behalf and keeps the cheque to himself
X- theft for converting funds for his own private use
Defences for X-
1. The existence of a liquid fund:
X- holds money in trust on Y’s behalf or receives money from Y for a specific purpose
X- uses money for different purpose
X does not commit theft if at the time he spends the money he has a liquid fund
which enables him to repay the money to Y
Liquid fund- money can be withdrawn without delay
2. Money received as part of debtor-creditor relationship:
Y- lends money to X
X- receives money as part of a debtor-creditor relationship
