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Criminal Law 451 Section C Summary
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Neat and comprehensive summary of the coursework prescribed for Section C of the Criminal Law 451 module.
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SECTION C: THEFT, ROBBERY, EXTORTION, FRAUD, ETC.Session 1: The common law crime of theft
Definition of theft
• Burchell: Theft is an unlawful appropriation, with the intent to steal, of a thing capable
of being stolen.
• Consistent with the definition provided by the AD in the Visagie case.
• Customary criminal law also recognises the crime of theft and requires that it be
carried out intentionally for liability to follow. However, while theft of public resources
is always a crime, some sources classify theft of private resources as a crime while
other sources classify it as a delict. Depends on which part of the country you are in.
Unusual aspects of the crime
• The crime of theft in SA law is a single unified crime, including in its ambit what in
other legal systems would be more or less separate crimes or larceny, embezzlement,
and fraudulent conversion.
o As such, removal of a thing is not always required as X can steal something that
is in his or her possession but that belongs to someone else = embezzlement.
o So too, in SA law, not only is it theft to steal the property of another but it is
also theft to take one’s own property (in the form of furtum possessionis)
which is in the lawful possession of another person.
• Unauthorised borrowing of another’s property (furtum usus), whilst not common-law
theft, is nevertheless punishable in SA law, although the extra-contractual use of
another’s property may not be.
Origin and development of the SA crime of theft
• Three different models of the crime:
1. Romanistic (classical) model = envisages a single unified crime based on
contrectatio.
2. English Common Law model = based on a collection of various crimes.
3. “Modern” model of appropriation = follows the English codification and civil
law formulations.
• The SA approach to the crime of theft is not shaped by any one source in particular,
and consistent with the doctrinal formulation of the SA substantive criminal law, it has
developed its own unique nature.
• Burchell: The taking (appropriation) of goods otherwise than with the consent and
agreement of the owner violates the institution of private property and generates
social disorder – this conduct is punished by the crime of theft, which punishes those
who unlawfully deprive others of the possession of their property or proprietary
interests.
,The crime of theft overlaps to some extent with several other crimes
• Examples of crimes that overlap with theft provided that all the elements of the crime
of theft is also present:
o Fraud
o Theft by false pretences
o Receiving stolen property
o Robbery
o Extortion
o Malicious injury to property
The elements of the crime of theft and the different forms
• The elements:
1. Unlawfulness
2. Appropriation
3. Property capable of being stolen
4. Intention
• The 4 forms of theft:
1. Removal of property in someone else’s possession
§ X takes property from Y and appropriates it
2. Embezzlement
§ X appropriates Y’s property which is in X’s possession
3. Arrogation of possession (furtum possessionis)
§ X takes his/her own property from Y, who has a right to possession over
the property
4. Theft of credit, including appropriation of trust money
§ Usually where credit has been entrusted to X to use money in a certain
way, and X then uses it for another purpose
§ Note: Unlike the typical form of theft, here theft takes place in respect of
an incorporeal thing, and what is stolen does not belong to someone else.
UNLAWFULNESS
• Unlawfulness of appropriation may be excluded by justification grounds such as
negotiorum gestio, necessity and consent.
• In practice consent is the most important one since taking must be against the owner’s
will
o If X intends to steal, but owner consents = not theft, but can be attempted
theft
o Where a trap is created which creates an opportunity for someone to steal
something = theft and the fact that it was a trap is not a defence
• Consent will be absent when:
a) Minority
b) Mental illness
c) Statutory grounds
, d) Mistake, fraud, force or fear gave rise to consent
• The de minimus non curat lex rule may also apply.
• NB: No defence that X intended to replace the property taken, or that he/she has
sufficient funds to cover value of stolen goods.
APPROPRIATION
• Social policy underlying theft = to prevent individuals being unlawfully deprived of
benefits owned/possessed by them.
• Terminology
o Original meaning of appropriation required some form of “handling/touching”
= contrectatio.
o Although the term contrectatio is still used by our courts on occasion, it is clear
that our law has long since reached the stage where a thing can be stolen
without being touched or physically handled.
§ X chases her neighbour Y’s chickens off Y’s property and onto her own
without touching them
o Another reason why it is arguably important to replace contrectatio with
appropriation is the fact that not many people will know what contrectatio
means and this creates problems because people need to know what they will
be held liable for.
• Essentially, appropriation will occur where:
o X arrogates to himself the rights of an owner in respect of property and deals
with it as if he were the owner (positive element) AND X’s act must effectively
preclude the owner or lawful possessor from exercising his/her rights over the
property (negative element)
o The reason for the second requirement:
§ If the only requirement was that X should have arrogated to himself the
rights of an owner, it would be very difficult to distinguish between
completed theft and attempted theft.
§ Furthermore, actual deprivation is required so that a person who
merely points out another’s property as his own will not be considered
a thief where the owner retains control throughout.
o Case law to illustrate that both a positive and a negative element is required:
§ Tau
• Tau exercised control (or at least assumed control) over a piece
of raw gold, but the security in the smelting house of the gold
mine in which the act took place was so tight that he would
never have succeeded in removing the raw gold from the
smelting house.
• The court held that Tau has not committed theft of the raw gold
because he had never succeeded in excluding the gold mine
(which owned the raw gold) from exercising control over it.
Therefore, at most is constituted attempted theft.
§ Mzandi
• Mzandi broke into a house, placed articles such as a hi-fi set in
a bag and placed it underneath a bed. However, he never
, removed the article from the house. Apparently, his intention
was to return at a later stage when it was safer for him to, but
this never happened.
• The court held that Mzandi had not committed theft of the
articles but at most attempted theft, because the real owner
had never lost control of his articles.
o How does one determine when the negative element has come into
operation?
§ Distinction between completed theft and attempted theft = whether,
at the time X was apprehended with the property, Y had already lost
control over the property, and X had gained control of it in Y’s place.
o Usually, the two elements occur at the same time, but if they occur at a
different time and X is arrested in between = only attempted theft.
o Where the form of theft is embezzlement, obviously only the positive element
is required to make the theft complete.
o Jointly owned property = can be stolen if both the elements is satisfied.
• Application in the context of self-service shops
o Latest trend in case law is to treat it as completed theft where X has taken
control over the item because it is impossible for the owners in these shops to
keep an eye on everyone which means that apprehension is to a certain extent
a matter of chance.
o Therefore, from the moment X conceals items on her person, these then
ceased to be visible to the shop-owner, and therefore the shop-owner can no
longer exercise control.
o However, if the accused is apprehended in a shop/business where security
measures are so tight that it is practically impossible to remove the articles
without being caught, then it is only attempted theft, because the owner
retains control even if the accused has temporally placed the article in her coat.
o Example from case law:
§ Brown
• Accused took two bottles of liquor and did not go to the tills but
tries to hide it and went for the doors. Stopped by security and
asked for till slip. She said the slip was with friends who were
still in the shop. She then went back and put one bottle of liquor
down and went to the door again trying to steal only the one
bottle. Again, she was stopped by the security guard and this
time the security guard found the bottle and took it from her.
• Council argued that it is at most attempted theft due to the fact
that she would never have gotten away with it. Referenced the
cases of Mekula and Mgabuzana.
• However, the court held that it could actually be complete theft
because the accused concealed the items on her person to the
extent that it ceased to be visible to the shop-owner, and
therefore the shop-owner can no longer exercise control.
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