, LCR4805
ASSIGNMENT 2 SEMESTER 2
2026
DUE SEPTEMBER 2026
QUESTION 1
A) Can Information Be Stolen? An Examination of South African Law's Adaptation to
Technological Advancements
1. Introduction
The information age has fundamentally transformed how value is created, stored, and exchanged.
Information itself has become a form of property—often more valuable than tangible assets. This
raises a critical legal question: can information be "stolen" in the legal sense? While the physical act
of copying data is straightforward, the legal principles governing theft traditionally require the
appropriation of corporeal property. This essay critically examines whether South African law has
adapted to recognise the theft of information, comparing the position with other jurisdictions and
analysing relevant case law, legislation, and academic commentary.
2. The Common Law Definition of Theft
At common law, theft is defined as "the unlawful and intentional appropriation of moveable,
corporeal property belonging to another, with the intention to permanently deprive the owner of
possession thereof."¹ This definition contains several elements that pose challenges when applied
to information:
Corporeality: The property must be tangible and movable.
Appropriation: The thief must deprive the owner of possession.
Intention to permanently deprive: The thief must intend to permanently dispossess the owner.
Traditional South African law treated incorporeal property—such as ideas, designs, and
information—as incapable of being stolen. As one academic source notes, "incorporeal properties
(an idea or design)" fall into the category of things absolutely incapable of being stolen.² This
doctrinal position reflects the Roman-Dutch law roots of South African common law.
, 3. The Challenge of Information as Property
The difficulty with applying theft to information lies in its nature. When information is copied, the
owner is not deprived of possession; rather, the owner retains the original while the perpetrator
gains a copy. As Snyman observes, "the mere copying of data or information will not amount to
theft."³ The requirement of contrectatio—the physical taking or handling of property—cannot be
satisfied by the intangible act of copying.
The UK case of Oxford v Moss illustrates this limitation. A student who accessed and read an
examination paper in advance was charged with theft, but the court held that "there could be no
theft of information."⁴ Information, being intangible, could not be the subject of theft. This position
reflects the traditional common law approach that prevails in several jurisdictions.
Similarly, under English and Welsh law, "information is not considered property, and theft of
information is not recognised as an offence."⁵ Instead, perpetrators may be prosecuted under
specific statutory offences for unauthorised access to computer material, which are classified as
conduct offences rather than property offences.
4. South Africa's Legislative Response
4.1 General Law Amendment Act 50 of 1956
South Africa took an early step toward addressing the unauthorised use of property through
section 1(1) of the General Law Amendment Act 50 of 1956. This provision criminalises the removal
of property from the owner's control with intent to use it for one's own purposes, "whether or not
he intends throughout to return the property."⁶ However, this provision is limited in application to
cyber offences because "the term property is limited to corporeal items."⁷ The Act does not extend
to services, time, or information—aspects of an incorporeal nature.
4.2 Electronic Communications and Transactions Act 25 of 2002
The Electronic Communications and Transactions (ECT) Act introduced specific offences relating to
cybercrime. Section 86(3) criminalises the production, sale, or possession of devices designed to
overcome security measures for the protection of data. Section 86(4) prohibits the use of such
devices to unlawfully overcome security measures designed to protect data.⁸
Notably, however, the ECT Act does not create a standalone offence of information theft. Instead,
existing common law principles continue to apply. As one analysis explains: "If a person accessed
information unlawfully and he or she uses that information to commit a crime, the crime itself will
still be punishable. For example, if a person had access to the information of another without
authorisation or consent and obtained a credit card number, the use of the credit card number to
make purchases will punishable as fraud or, in the alternative, theft."⁹ This approach means that
while the underlying fraudulent conduct may be prosecuted, the act of obtaining the information
itself remains difficult to classify as theft.
ASSIGNMENT 2 SEMESTER 2
2026
DUE SEPTEMBER 2026
QUESTION 1
A) Can Information Be Stolen? An Examination of South African Law's Adaptation to
Technological Advancements
1. Introduction
The information age has fundamentally transformed how value is created, stored, and exchanged.
Information itself has become a form of property—often more valuable than tangible assets. This
raises a critical legal question: can information be "stolen" in the legal sense? While the physical act
of copying data is straightforward, the legal principles governing theft traditionally require the
appropriation of corporeal property. This essay critically examines whether South African law has
adapted to recognise the theft of information, comparing the position with other jurisdictions and
analysing relevant case law, legislation, and academic commentary.
2. The Common Law Definition of Theft
At common law, theft is defined as "the unlawful and intentional appropriation of moveable,
corporeal property belonging to another, with the intention to permanently deprive the owner of
possession thereof."¹ This definition contains several elements that pose challenges when applied
to information:
Corporeality: The property must be tangible and movable.
Appropriation: The thief must deprive the owner of possession.
Intention to permanently deprive: The thief must intend to permanently dispossess the owner.
Traditional South African law treated incorporeal property—such as ideas, designs, and
information—as incapable of being stolen. As one academic source notes, "incorporeal properties
(an idea or design)" fall into the category of things absolutely incapable of being stolen.² This
doctrinal position reflects the Roman-Dutch law roots of South African common law.
, 3. The Challenge of Information as Property
The difficulty with applying theft to information lies in its nature. When information is copied, the
owner is not deprived of possession; rather, the owner retains the original while the perpetrator
gains a copy. As Snyman observes, "the mere copying of data or information will not amount to
theft."³ The requirement of contrectatio—the physical taking or handling of property—cannot be
satisfied by the intangible act of copying.
The UK case of Oxford v Moss illustrates this limitation. A student who accessed and read an
examination paper in advance was charged with theft, but the court held that "there could be no
theft of information."⁴ Information, being intangible, could not be the subject of theft. This position
reflects the traditional common law approach that prevails in several jurisdictions.
Similarly, under English and Welsh law, "information is not considered property, and theft of
information is not recognised as an offence."⁵ Instead, perpetrators may be prosecuted under
specific statutory offences for unauthorised access to computer material, which are classified as
conduct offences rather than property offences.
4. South Africa's Legislative Response
4.1 General Law Amendment Act 50 of 1956
South Africa took an early step toward addressing the unauthorised use of property through
section 1(1) of the General Law Amendment Act 50 of 1956. This provision criminalises the removal
of property from the owner's control with intent to use it for one's own purposes, "whether or not
he intends throughout to return the property."⁶ However, this provision is limited in application to
cyber offences because "the term property is limited to corporeal items."⁷ The Act does not extend
to services, time, or information—aspects of an incorporeal nature.
4.2 Electronic Communications and Transactions Act 25 of 2002
The Electronic Communications and Transactions (ECT) Act introduced specific offences relating to
cybercrime. Section 86(3) criminalises the production, sale, or possession of devices designed to
overcome security measures for the protection of data. Section 86(4) prohibits the use of such
devices to unlawfully overcome security measures designed to protect data.⁸
Notably, however, the ECT Act does not create a standalone offence of information theft. Instead,
existing common law principles continue to apply. As one analysis explains: "If a person accessed
information unlawfully and he or she uses that information to commit a crime, the crime itself will
still be punishable. For example, if a person had access to the information of another without
authorisation or consent and obtained a credit card number, the use of the credit card number to
make purchases will punishable as fraud or, in the alternative, theft."⁹ This approach means that
while the underlying fraudulent conduct may be prosecuted, the act of obtaining the information
itself remains difficult to classify as theft.
