Theft

 Definition: Theft is the unlawful, intentional appropriation of property capable of

being stolen with the intention of permanently depriving the owner of ownership.
 There is an assumption of control of movable corporeal property
 Generally corporeals and movables are stolen, as land cannot be stolen, nor can be
fixed property.
 It is a formally defined crime, circumstance crime so no causation is required.

CASE: R v Maloyi
 Theft is defined as a fraudulent dealing, contrectatio fraudulosa, with the movable
property of another. Contrectatio is taken in a wide sense hence a creditor can
commit theft of a thing left with him in a pledge and a despositee of a thing.
 Possessors have certain rights, so a depositor or pledgor can actually steal their own
property.
 Snyman: Theft can be commited in a number of ways, and can be by embezzlement
(appropriating money which is not physically handled)

Four elements must be present:

1. An act
2. Unlawfulness
3. Intention
4. Property

(1) Appropriation/Contrectatio
 Need there be physical control over the property or mere deprivation of the control?
 Under Roman law one had to physically handle the property for it to constitute theft
but now it depends on the degree of control
 Contrectatio is an assumption of control which the law regards as sufficient
 Mere touching is not enough but the owner does not have to be deprived of the thing
for the accused to have contrectatio

CASE: R v Carelse and Kay

 The accused intended to steal petrol and hid the petrol with the intention of
collecting it later. The petrol shop owner figured out what they are doing. Were they
liable even though they did not physically remove it from his property?

CASE: R v Strydom
 Facts: Accused sold a bull to Short claiming the bull belonged to his father and he had
permission to dispose of it, however it belonged to the complainant.
 Court held: When the accused represented to Short that the bull belonged to his
father it was fraudulent but was this theft or fraud? Theft may be committed by a
book entry to financial prejudice of another or through manipulation of cheques. But
when it comes to theft of an individual object like the bull, the rule seems to be that
there must be an actual physical handling or some conduct akin to handling.

CASE: R v Mapiza

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  Facts: A boy received a number of cases of cigarettes and one went missing and was
found under the stairs which he had put there.
 Court held: The accused had lied and it was not possible to get direct evidence and
guilt must be inferred from the facts – the accused hid and intended to steal and
remove it later.

Shoplifting in Self-service stores

 Contrectatio creates a serious problem as to what degree of appropriation is required
in self-service stores
 Sampling: could be something to improve customer relations; also de minimis non
curat lex – the law does not care for trivialities.

CASE: S v Dlamini
 Facts: The accused went into a self-service store with no money and took a T-shirt
from the shelf and hid it under his shirt.
 Court held: The accused was guilty as had assumed control of the property and the
evidence showed an intention to steal (had no money so could not pay)

Snyman: Appropriation has a positive and negative element. The negative element consists of
depriving the lawful owner of his property and the positive element the thief exercising the
right of control over his property. Therefore by Snyman’s reasoning a person cannot be
convicted before he has succeeded in depriving the owner of the thing

CASE: S v Tau
Snyman’s approach to appropriation was used
 Facts: Accused assumed control over a piece of raw gold from the smelting house. He
had kicked in around to try to pick it up but this was in full view of everyone.
 Court held: He may have intended to steal the gold but he never deprived the mine
(owner) of its property.

 Lack of intention can be a defence

 A contrectatio may be effected where a person has acquired possession of an object
illegally; where the person has knowledge it has been acquired illegally.
 Theft is a common law crime but there are situations where the common law did not
cover all aspects
 S36 of the General Law Amendment Act – failure to give account of goods suspected of
being stolen
 Unauthorized borrowing: s1 of General Laws Amendment Act

CASE: R v Naidoo
Contrectatio can be achieved in circumstances where the accused acquired possession of the
object innocently
 Facts: The accused received tablecloths from SAR&H and 4 months later he discovered
they were stolen goods. He tried to conceal them but did not conceal all.
 Court held: The statutory definition requires knowledge must be contemporaneous
with the receipt of the stolen goods. The accused was acquitted of the crime of
receiving stolen property.

THEFT OF MONEY
Special rules apply for theft of money

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  R v Milne and Erleigh – one can effect contrectatio through the agency of another
 R v Moodley – the accused took a position behind a counter of a store and sold
potatoes but took the money from the sales. Court confirmed one can effect
contrectatio through the agency of another
 Money and funds are commonly manipulated through negotiable instruments and these
transactiosn are sufficient assumptions of control and amount to contrectatio; the
accused does not actually have to touch the money

(2) Unlawfulness
There is no theft if the contrectatio is lawful; it is only unlawful if it is effected in veto
domini (against the owner’s will/consent)
There is no unlawfulness if there is a ground of justification:
 Consent
 Necessity
 Duress

Necessity
 When is theft excusable in terms of necessity? It depends on the circumstances

Consent
 Consent must be real, free and voluntary (R v McCoy)
 If consent is not real:
o In cases of trapping (Maserow)
o Result of mistake by victim (S v Graham)
o Induced by fraud (In re R v Gesai)
o Due to minority, insanity or non-compliance with legal requirements for
consent (S v De Jager)

CASE: S v Graham
 Facts: A company owed R37 000 to the accused and sent a cheque for the amount,
however it later sent another cheque for the same amount. The accused banked the
cheque and alleged there was consent, however he spent the additional R37 000.
 Court held: Guilty of theft as the company’s consent was not real

Duress
 Duress vitiates consent

CASE: Ex Parte Minister v Justice: In re R v Gesa; Rv De Jongh

Whether the crime of robbery is committed where the victim, when threated with violence,
voluntarily hands over his property
 Court held: Where A threatens B with personal violence in order to get possession of a
thing belonging to B and B hands the thing over to A rather than run the risk of bodily
injury, A is not guilty of robber or theft. The victim need not be physically
incapacitated, it is sufficient that he is overborne by fear. In law there is no
difference between the case where threats produce submission enabling the
wrongdoer to search the victim’s pockets and the case where the victim, under such
threats, hands over his property. This is common sense.

CASE: Ex Parte Minister of Justice: In re R v Maserow

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Trapping
 Facts: Police arrested P who was in possession of some bottles of stolen brandy and
the police took the bottles and persuaded P to participate in trapping the accused.
The accused was then charged with receiving stolen property.
 Court held: For receipt to be felonious it must be receipt without the authority of the
owner. The question was: does a person who receives stolen goods from the thief
knowing them to be stolen, commit a crime if prior thereto the stolen goods had been
recovered from the thief by the police and redelivered by them to him for the purpose
of trapping the appellant? Only the consent of the owner deprives the receipt of
criminal character, not the consent of the police.

CASE: R v Lepheana
 Facts: Appellant was charged with theft and extortion. He had arrested a woman for
being in possession of an illegal concoction and offered to release he if she paid him
£10.
 Court held: The essential element was lacking as both the threat and implied threat
to prosecute were lawful and there was no legal inspiration of fear which induced the
payment of the money

De minimis non curat lex

 Where the value of what is taken is insignificant (worthless piece of paper) the
accused will not be guilty of theft.
 Spontaneous agency – acting as an agent without mandate

 Example: X buys a book for Y and Y removes it and tries to sell it to get the monetary
value. This is not theft but attempted theft (R v Davies)

MENS REA – FAULT

(3) Intention to steal (animus furandi)

 There must be intention to permanently deprive the owner of the benefits of his
property
 This intention is special and particular to theft; it is not the same mental state as it
found in other crimes
 Intention is ordinarily understood as relating to all elements of the actus reus
 Contemporaneity creates difficulty especially in furtum usus (theft of use) for
temporary enjoyment

Motive is irrelevant with regards for intention to steal !!!

CASE: R v Sibiya
 Facts: The accused and M were employees at a garage and took the complainant’s car
and drove it around for their amusement and it ended up in a ditch on the side of the
road. They were convicted of theft but contended that they always intended to return
the car. On appeal:
 Court held: Taking a thing with intent to return it is not theft, although abandonment
with reckless disregard of whether the owner recovered it or not would evidence
intention to deprive the owner of the whole benefit of his property would suffice to
establish theft. The law requires not only that the thing should have been taken
without belief that the owner had consented or would have consented to the taking,

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 but also that the taker should have intended to terminate the owner’s enjoyment of
his rights or to deprive him of the whole benefit of his ownership. Intention can be
inferred. Appeal allowed. However, the accused was guilty of unauthorized borrowing.

o S1 of General Law Amendment Act 50 of 1956 – unlawful borrowing is a crime

 Intention can be inferred from objective factors, such as the time period of the
taking.
 Qualifications to the rule that furtum usus does not constitute theft is that abandoning
property and not returning it to the owner

CASE: R v Laforte
 Facts: The accused was charged with breaking into a garage with intention to steal a
motor vehicle. He was a labourer at a doctor’s house and took the doctor’s car with
two of his friends. He was under the influence of alcohol and drove into a lamp post
but left the car at the accident site and made no effort to contact the owner. He
argued he had been given the keys.
 Court held: To constitute theft, the unlawful taking must be coupled with the
intention to terminate the owner’s rights and intention may be inferred from
abandonment with reckless regard as to what happens. Accused must have foreseen
the possibility that by abandoning it, it would not be returned to the owner.
 Principle: X may not have intention when he appropriates the thing but there is
intention when he abandons it
 Criticism: This case holds that mere abandonment amounts to theft so contrectatio is
constituted by the abandonment which is contrary to contrectatio. Abandonment
reflects not returning (negative act) while contrecatio is a positive act

 Failing to return something leads to the inference that the taker did not intend to
return it

CASE: S v Van Coller

 Facts: A scientist was charged with stealing 4 microscopes, his motive being to
influence the authorities against him. He intended to restore the microscopes to the
government even if the charges were not dropped. The issue was whether he intended
to deprive the owner of use and enjoyment of the microscopes.
 Court held: Examined situations where taking is aimed at inducing payment. The
actus reus is such that the accused acknowledges ownership of the owner and does
intend to return the property. Dolus eventualis exists in these situations.

CASE: R v Maruba
 Facts: A shepard was driving sheep belonging to an employee and one was lagging
behind so he killed it
 Court held: This did not constitute theft as there was no taking (assumption of
control); it was malicious damage to property

 Academics argue that theft should entail more than permanent deprivation, but
arrogating a power to one’s self
 If one does not foresee the possibility that taking is unlawful or the property is
capable of being stolen then it does not constitute theft as there is no intention

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  In these instances mistake of fact and law are relevant and it does not matter which
one, as long as it negates mens rea
 Contemporaneity is important: the act must correspond with intention; the taking
must be accompanied by unlawful intention

 S v Modise: Accused picked up pig carcasses belonging to another person but the court
acquitted him on the basis of claim of right (mistake of law)
 R v Nqwilis: The accused was having his animals dipped and paid the fees but that the
fees he paid included the dip tins so took the dip tins with him. The court held he had
a claim of right
 R v Ndela: The accused owed someone and had his ox taken from him in execution of
the judgement. He took his ox back because he though the execution was illegal and
invalid and wanted to appeal it. He was held to have a claim of right in this respect
 R v Slabbett: The taking of the alcohol was not accompanied by unlawful intention

CASE: R v Kinsella
 Facts: Accused was commander of a military camp and anxious to improve the camp
facilities. He disposed of certain scrap without authority and was charged with theft as
the scrap belonged to the government. On appeal:
 Court held: Was the accused guilty of theft? Argument for the accused was that he
had no dishonest intention to prejudice the owner (relied on R v De Ruiter). The
accused knew when he sold the items he had no authority to do so and his intention
was to permanently deprive the owner of his rights to property/ownership. Prejudice
to the owner is not an essential element of theft, rather of fraud as was the issue in R
v De Ruiter. Irrelevant that the accused did not intend to benefit himself. Appeal
dismissed.

(4) Property
 Property must be capable of being stolen
 Property not capable of being stolen is res nullius; res communis and res derelicta
 Only property of economic value is capable of being stolen

The following can be stolen:

 Movable property (it is impossible to steal immovables, that is land and fixed property,
but fixed property may become movable)
 Corporeal/tangibles

 R v Cheeseborough – an idea or design is not capable of being stolen

 R v Renaud – a man and his wife boarded at a hotel for the night pretending they were
workers of Nesquik. They were charged with theft but the court held intangible things
cannot be stolen
 There is criticism of the fact that intangibles cannot be stolen because the
incorporeals (shares, stocks) cannot be stolen either
 The exception to this rule is theft of money, which can be stolen where it does not
take the form of corporeal cash (S v Graham)

The item being stolen must be capable of forming part of commerce and must not fall into
any of the following categories:

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  Res communes – something that belongs to everyone such as a stream or ocean. If it
becomes private possession then it is in commercium (capable of being bought and
sold), then it can be stolen
 Res derelicta – useless property abandoned by its owners with the intention of ridding
themselves of it
 Res nullius – belongs to no one but can become private property by occupatio; only
abandoned if it is physically abandoned and the owner has intention to release
ownership of it.
 Res sua – generally a person cannot be guilty of stealing their own property unless a
person takes their own property that another person has a right or interest in (ie.
Possessor). A co-owner may be guilty of theft of commonly owned property if he
intends to deprive the co-owners permanently of their rights to the property.

CASE: R v Mafohla
 Facts: The accused pleaded theft to a carcass of a kudu. The evidence was that he
had mortally wounded it the day before so he trailed it and his dog chased it and killed
it. He argued he had effected occupatio and so was the owner
 Court held: Accused had not effected occupatio as the kudu was able to run away.

 The property must belong to someone

CASE: R v Janoo
 Facts: Accused convicted of theft of a carton of goods from SAR. The carton had been
consigned to the accused but it arrived too late to be delivered to his address. He
went to the railway station and sought to remove the carton but when the official in
charge refused, the accused surreptitiously sought it out and tried to remove it. He
was charged with theft.
 Court held: In the case of pledged goods there is no doubt that it would indeed be
theft. R v Twala: “our law…cannot allow de facto possession to be distributed with
impunity except by one who himself has a claim as possessor”. The administrator was
entitled to refuse delivery to the accused until he produced a receipt , as it had a
right to retain the property until the accused produced a receipt or a document
wherein the administration admitted receipt of the goods. He was guilty of theft and
arrogation of property.

TRUST MONEY
 Trust money is money handed over to someone subject to an obligation on the
recipient to use the money in a certain way
 Trust money can be stolen and used in a manner other than for what it was intended.
 Equivalent liquid fund; there must be disposable amounts
 To make an illiquid fund liquid, it must be liquidated

CASE: R v Weiss
 The accused was charged with theft of over £500 belonging to his employer. She
employed the accused to receive the money for her but he deposited it into his
overdrawn personal account. Later he withdrew the money but he was still overdrawn
(did not have equivalent liquid fund). Guilty of theft.
CASE: R v Manuel
 Facts: Complainant was a widow living in Egypt and met the accused there. She began
to live with him on the understanding that they would be married when he returned to

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 South Africa and divorced his wife. When he had divorced his wife, the complainant
sent £350 for airfare for herself and other things. When she arrived in SA however, the
accused had used the money and married another woman.
 Court held: It is trite law that this was trust money and where an agent does not pay
it to his principal he is guilty of theft. Even though the complainant gave him the
money, he did not use it for the purpose intended and so was guilty of theft.

CASE: R v Schoulides
Short-changing – by handing over the money the complainant was not the accused owner of
the money unconditionally
 Facts: Complainant asked the accused, café proprietor, for a 1/4 pound of tobacco
which cost 15 cents, and handed the accused a R2 note. He received 85 cents change
and claimed the additional R1 change but the accused said he had only received R1.
Accused convicted of theft
 Court held: The purchaser hands over a bank note not in order to make the seller
unconditionally the owner but only in order to make him the owner if and when the
goods and the right change are tendered.
 Principle: Where a seller take a banknote tendered by a purchaser in payment for
goods to be handed over at once in exchange for the money, and where the seller
intentionally gives less change than to his knowledge is due, the law would indeed be
gravely deficient if it treated the seller only as a contract-breaker and not as a thief.

CASE: R v Pretorius
Trust fund money
 Facts: The accused received money from a partnership and argued his charges should
be dropped as a partner could not be convicted of committing theft
 Court held: A partner who fraudulently appropriates partnership money to his own use
is guilty of theft.

CASE: R v Satisky
Creditor-debtor relationship
 Facts: The accused was the complainant’s agent and part of his responsibility was to
run the business for buying and selling ostriches. He was also required to keep proper
records of transactions and was to account for all monies received. In the course of
the business he received money but fraudulently withheld this from the complainant
 Court held: Guilty of theft

CASE: S v Mintoor
Theft of electricity
 Facts: Accused was convicted of theft of 901 units of electricity.
 Court held: At common law only a material or physical thing can be stolen. “Air,
water or electrivity remain res communes only in their natural environment. If
reduced to private possession they fall in commercium and are capable of theft”, and
Snyman’s view is that electricity is of economic value so is capable of being stolen. A
decision that electricity is capable of theft requires an extension of criminal law.
Appeal upheld, conviction set aside.

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THEFT AS A CONTINUING CRIME
 The theft continues as long as the stolen property is in the possession of the thief or of
some person who was a party to the theft or of some person acting on behalf of or
even possible, in the interests of the original thief or party to theft

There are two significant consequences:

1. Even though original appropriation may have occurred outside a particular jurisdiction,
the thief may be tried at the place he was found with the property
2. Doctrine may be used to justify the conclusion that persons who assist the thief after
the initial appropriation but while the theft continues the guilty are not merely
accessories after the fact but accessories to theft.

CASE: S v Cassiem