, PLEASE USE THIS DOCUMENT AS A GUIDE TO ANSWER YOUR ASSIGNMENT
QUESTION 1
1. We live in an "information age" and the question which 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.
Introduction
The modern era is often described as the “information age,” where intangible assets such as data,
trade secrets, and confidential information rival, and sometimes surpass, the economic value of
physical property. This shift presents a fundamental dilemma for criminal law: while traditional
property law is grounded in the protection of tangible, corporeal objects, information exists in an
incorporeal form. Unlike a stolen wallet or a vehicle, when information is copied, the original owner
is not deprived of possession in the same physical sense, thereby challenging the common law
definition of theft1 .
The central issue in this discussion is therefore not whether it is physically possible to remove or
copy information, but whether the legal principles of theft are capable of classifying such acts as
theft under South African law. The traditional definition of theft requires the unlawful appropriation
of property capable of being stolen, with the intent to permanently deprive the owner2 . Since
information does not fit neatly into the category of corporeal property, South African courts have
historically excluded it from theft, relying instead on statutory interventions.
1. The Common Law Definition of Theft in South Africa
At common law, theft is defined as the unlawful and intentional appropriation of movable, corporeal
property belonging to another with the intent to permanently deprive the owner of it3. This definition
is rooted in Roman-Dutch law and remains central to South African criminal law today. To fully
appreciate the challenges posed by the question of whether information can be stolen, it is essential
to unpack the core elements of the crime.
1.1 The Unlawful Appropriation (Actus Reus)
The actus reus of theft requires a physical act of taking, or contrectatio, involving the assumption of
control over the property of another. In Roman-Dutch law, this involved both physical interference
with an object and the intent to treat it as one’s own (contrectatio cum animo furandi). In the context
of information, however, this requirement is problematic. Copying data or knowledge does not
involve the same physical interference, since the owner still retains the original material, thereby
calling into question whether appropriation has occurred in the common law sense4 .
1: (Burchell, 2016:798)
2: (Snyman, 2014:487)
3: (Snyman, 2014:487; Burchell, 2016:797)
4: (Snyman, 2014:489)
QUESTION 1
1. We live in an "information age" and the question which 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.
Introduction
The modern era is often described as the “information age,” where intangible assets such as data,
trade secrets, and confidential information rival, and sometimes surpass, the economic value of
physical property. This shift presents a fundamental dilemma for criminal law: while traditional
property law is grounded in the protection of tangible, corporeal objects, information exists in an
incorporeal form. Unlike a stolen wallet or a vehicle, when information is copied, the original owner
is not deprived of possession in the same physical sense, thereby challenging the common law
definition of theft1 .
The central issue in this discussion is therefore not whether it is physically possible to remove or
copy information, but whether the legal principles of theft are capable of classifying such acts as
theft under South African law. The traditional definition of theft requires the unlawful appropriation
of property capable of being stolen, with the intent to permanently deprive the owner2 . Since
information does not fit neatly into the category of corporeal property, South African courts have
historically excluded it from theft, relying instead on statutory interventions.
1. The Common Law Definition of Theft in South Africa
At common law, theft is defined as the unlawful and intentional appropriation of movable, corporeal
property belonging to another with the intent to permanently deprive the owner of it3. This definition
is rooted in Roman-Dutch law and remains central to South African criminal law today. To fully
appreciate the challenges posed by the question of whether information can be stolen, it is essential
to unpack the core elements of the crime.
1.1 The Unlawful Appropriation (Actus Reus)
The actus reus of theft requires a physical act of taking, or contrectatio, involving the assumption of
control over the property of another. In Roman-Dutch law, this involved both physical interference
with an object and the intent to treat it as one’s own (contrectatio cum animo furandi). In the context
of information, however, this requirement is problematic. Copying data or knowledge does not
involve the same physical interference, since the owner still retains the original material, thereby
calling into question whether appropriation has occurred in the common law sense4 .
1: (Burchell, 2016:798)
2: (Snyman, 2014:487)
3: (Snyman, 2014:487; Burchell, 2016:797)
4: (Snyman, 2014:489)
