Criminal Law Specific Crimes
Case Law
S v Ndebele 2012 (1) SACR 245 (GSJ)
The three accused were charged with theft for the unlawful use of electricity vending
machines known as credit dispensing units that could be used to dispense pre-paid vouchers
for electricity. They were alleged to have used the machines to steal electricity and electricity
credits.
Legal question: Is electricity capable of being the object of common-law theft?
Finding: Yes, it can be stolen.
Reasons for finding: In Ndebele it was held that the courts have moved away from the
physical handling of the property to a more abstract requirement of appropriation such as the
manipulation of credit. There need not be physical removal but rather the deprivation of a
characteristic and depriving the owner of a characteristic. Energy by electricity consists of
electrons and the characteristic attached to electrons is energy which is consumed and is
capable of theft. This case is contrary to the case of S v Mintoor which held that electricity is
not capable of being stolen
S v Gardener and Another 2011 (1) SACR 570 (SCA)
Two chief executive officers of company A failed to disclose their interests in company B to
the board of company A. Company A had bought shares in company B and as a result of this
transaction X and Y secured substantial profits. They were charged with fraud and duly
convicted, and appealed.
Legal question: Did they have the intention of defrauding company A and did their failure to
disclose their interests resulted in actual or potential prejudice to the company?
Finding: The court upheld the conviction of fraud.
Reasons for finding: The court found that the conduct of X and Y was potentially prejudicial
to company A since, inter alia, it precluded company A from considering the advantages and
disadvantages of the sale and induced company A to raise the finance and pay X and Y for
their interest in company B. Moreover, their conduct was deliberate since it was done to avoid
proper consideration of the transaction by the board in the self-interest of X and Y (para 57).
In considering the intention to cause prejudice, the court deemed it unnecessary to be more
specific as to the nature of that prejudice. The court stated (at para 58) that when company
directors directly withhold information material to the affairs of their company from the board
of directors there is, in the absence of an explanation for such conduct which may reasonably
be true, a case of fraudulent non-disclosure. That is because the company can only make
decisions through a board that is properly informed.
Case Law
S v Ndebele 2012 (1) SACR 245 (GSJ)
The three accused were charged with theft for the unlawful use of electricity vending
machines known as credit dispensing units that could be used to dispense pre-paid vouchers
for electricity. They were alleged to have used the machines to steal electricity and electricity
credits.
Legal question: Is electricity capable of being the object of common-law theft?
Finding: Yes, it can be stolen.
Reasons for finding: In Ndebele it was held that the courts have moved away from the
physical handling of the property to a more abstract requirement of appropriation such as the
manipulation of credit. There need not be physical removal but rather the deprivation of a
characteristic and depriving the owner of a characteristic. Energy by electricity consists of
electrons and the characteristic attached to electrons is energy which is consumed and is
capable of theft. This case is contrary to the case of S v Mintoor which held that electricity is
not capable of being stolen
S v Gardener and Another 2011 (1) SACR 570 (SCA)
Two chief executive officers of company A failed to disclose their interests in company B to
the board of company A. Company A had bought shares in company B and as a result of this
transaction X and Y secured substantial profits. They were charged with fraud and duly
convicted, and appealed.
Legal question: Did they have the intention of defrauding company A and did their failure to
disclose their interests resulted in actual or potential prejudice to the company?
Finding: The court upheld the conviction of fraud.
Reasons for finding: The court found that the conduct of X and Y was potentially prejudicial
to company A since, inter alia, it precluded company A from considering the advantages and
disadvantages of the sale and induced company A to raise the finance and pay X and Y for
their interest in company B. Moreover, their conduct was deliberate since it was done to avoid
proper consideration of the transaction by the board in the self-interest of X and Y (para 57).
In considering the intention to cause prejudice, the court deemed it unnecessary to be more
specific as to the nature of that prejudice. The court stated (at para 58) that when company
directors directly withhold information material to the affairs of their company from the board
of directors there is, in the absence of an explanation for such conduct which may reasonably
be true, a case of fraudulent non-disclosure. That is because the company can only make
decisions through a board that is properly informed.
