Theft (week 7)
Definition:....................................................................................................................................1
Different forms of theft................................................................................................................4
(1) Removal of a thing..................................................................................................................5
(2) Embezzlement:........................................................................................................................5
(3) Unlawful arrogation possession..............................................................................................6
(4) Theft of credit, including the unauthorised appropriation of trust funds:...............................6
Prescribed cases:
o R v Sibiya 1955 (4) SA 247 (A)
o S v Rantsane 1973 (4) SA 380 (O)
o S v Mekula 2012 (2) SACR 521 (ECG)
o S v Cassiem 2001 (1) SACR 489 (SCA)
Definition:
Unlawfully & intentionally appropriate moveable, corporeal property which:
(a) Belongs to & is in the possession of another
(b) Belongs to another but is in the perp’s own possession or
(c) Belongs to the perp but is in another’s possession & such other person has a right to
possess it which legally prevails against the perp’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.
Conduct Requirement:
Appropriation: consists of 2 components
(a) Negative component: The exclusion of Y from his property
(b) Positive component: X’s actual exercise of the rights of an owner in respect of the
property in the place of Y
Earlier cases held that for theft to be committed it is sufficient that there be an assumption
of control, even if Y was not deprived of his property. This is incorrect.
1
, In cases of theft in the form of embezzlement, it is only the positive aspect of appropriation
that matters; the negative component of the concept, which consists of Y’s exclusion from
the property, in reality, plays no role.
Property (things) capable of being stolen
(a) Movable
(b) Corporeal
o one cannot steal an idea. X may render Y guilty of fraud if he fraudulently
represents an idea to be his own whereas it is in fact not his own.
o The courts have long recognised that when $ is stolen by manipulation of
cheques, banking accounts, etc, it is not corporeal things such as the specific
notes/coins which are stolen but something incorporeal, namely, credit.
(c) Property must be in commercio:
o Available in commerce
(d) Belong to someone else:
o exception is the case of unlawful arrogation of the possession of a thing. If
property belongs to 2+ owners, the one can steal from the other(s).
Unlawfulness requirement:
- In practice the only ground of justification which is regularly encountered is consent.
o Where Y, as part of a prearranged plan to trap X, fails to prevent X from
gaining possession of the property, although he knows of X’s plans, there has
been no valid consent to the taking. Y has merely allowed it to trap X.
o Where Y hands over his property because he is threatened with personal
violence if he refuses, there is similarly no consent and the taking amounts to
theft.
o The position is the same where consent is obtained by fraud or false
pretenses.
Intention requirement:
(a) The intention (and more particularly X’s knowledge) must relate to the act, the
definitional elements of the crime as well as the unlawfulness.
2
Definition:....................................................................................................................................1
Different forms of theft................................................................................................................4
(1) Removal of a thing..................................................................................................................5
(2) Embezzlement:........................................................................................................................5
(3) Unlawful arrogation possession..............................................................................................6
(4) Theft of credit, including the unauthorised appropriation of trust funds:...............................6
Prescribed cases:
o R v Sibiya 1955 (4) SA 247 (A)
o S v Rantsane 1973 (4) SA 380 (O)
o S v Mekula 2012 (2) SACR 521 (ECG)
o S v Cassiem 2001 (1) SACR 489 (SCA)
Definition:
Unlawfully & intentionally appropriate moveable, corporeal property which:
(a) Belongs to & is in the possession of another
(b) Belongs to another but is in the perp’s own possession or
(c) Belongs to the perp but is in another’s possession & such other person has a right to
possess it which legally prevails against the perp’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.
Conduct Requirement:
Appropriation: consists of 2 components
(a) Negative component: The exclusion of Y from his property
(b) Positive component: X’s actual exercise of the rights of an owner in respect of the
property in the place of Y
Earlier cases held that for theft to be committed it is sufficient that there be an assumption
of control, even if Y was not deprived of his property. This is incorrect.
1
, In cases of theft in the form of embezzlement, it is only the positive aspect of appropriation
that matters; the negative component of the concept, which consists of Y’s exclusion from
the property, in reality, plays no role.
Property (things) capable of being stolen
(a) Movable
(b) Corporeal
o one cannot steal an idea. X may render Y guilty of fraud if he fraudulently
represents an idea to be his own whereas it is in fact not his own.
o The courts have long recognised that when $ is stolen by manipulation of
cheques, banking accounts, etc, it is not corporeal things such as the specific
notes/coins which are stolen but something incorporeal, namely, credit.
(c) Property must be in commercio:
o Available in commerce
(d) Belong to someone else:
o exception is the case of unlawful arrogation of the possession of a thing. If
property belongs to 2+ owners, the one can steal from the other(s).
Unlawfulness requirement:
- In practice the only ground of justification which is regularly encountered is consent.
o Where Y, as part of a prearranged plan to trap X, fails to prevent X from
gaining possession of the property, although he knows of X’s plans, there has
been no valid consent to the taking. Y has merely allowed it to trap X.
o Where Y hands over his property because he is threatened with personal
violence if he refuses, there is similarly no consent and the taking amounts to
theft.
o The position is the same where consent is obtained by fraud or false
pretenses.
Intention requirement:
(a) The intention (and more particularly X’s knowledge) must relate to the act, the
definitional elements of the crime as well as the unlawfulness.
2
