LOOKING INTO THEFT OF ELECTRICITY: WHAT CONSTITUES THE CRIME OF
THEFT?
By
ZANDILE GUMEDE
63626624
Submitted in partial fulfilment of the requirements for the LLB degree
BACHELOR OF LAWS
In the
SCHOOL OF LAW
UNIVERSITY OF SOUTH AFRICA
RRLLB81 ASSIGNMENT 02
MR LC COETZEE
(23 June 2021)
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,ACADEMIC HONESTY DECLARATION
1. I understand what academic dishonesty entails and am aware of Unisa‟s policies
in this regard.
2. I declare that this assignment is my own, original work. Where I have used
someone else‟s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in, this assignment from the work or
works of other people has been referenced according to the prescribed style.
3. I have not allowed, and will not allow, anyone to copy my work with the intention of
passing it off as his or her own work.
4. I did not make use of another student‟s work and submit it as my own.
NAME: Zandile Gumede
SIGNATURE: Gumede
STUDENT NUMBER: 63626624
MODULE CODE: RRLLB81
DATE: 23 June 2021
TOPIC SELECTED: TOPIC 1: CRIMINAL LAW (THEFT OF ELECTRICITY)
MARK RECEIVED FOR ASSIGNMENT 01: N/A
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,ABSTRACT
The act of theft was previously described as „contrectatio‟ which is removal physical
handling by physical handling. The courts have moved away from this description as
provided by Roman-Dutch law to a more modern one that is easily comprehendible
to a lay person. The act of theft is now described as „an act of appropriation‟. There
is a general rule that property capable of being stolen must be movable corporeal
property. This research undertakes a study of the capability of theft of electricity. In S
v Ndebele 2021 (1) SACR 245 (GSJ), the court held that the decision in S v Mintoor
that electricity cannot be stolen was incorrect reason being that the characteristic
which attaches to electrons is the energy by which it moves, therefore the energy is
not an abstract concept but exists rather in reality because electrons are part of
matter. However, the decision by Lamont J is subject to criticism on grounds that the
judge disregarded the principle of legality and some commenters were of the view
that the best solution to determining whether or not electricity is capable of being
stolen should have been left to Legislation.
KEYWORDS
Theft;
Electricity;
Act of appropriation;
Characteristic attached to a thing; and
Principle of legality.
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,Abbreviation Meaning
/acronym
CC Constitutional Court
GSJ South African Gauteng High Court, Johannesburg
Para Paragraph
SA South Africa
SACR South African Criminal Law Reports
SCA Supreme Court of Appeal
SACJ South African Journal of Criminal Justice
SALJ South African Law Journal
THRHR Journal of Contemporary Roman-Dutch Law/ Tydskrif vir
Hedendaagse Romeins-Hollandse Reg
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,Table of Contents
1 INTRODUCTION ................................................................................................................ 6
1.1 Background ................................................................................................................... 6
1.2 Problem statement........................................................................................................ 6
1.3 Hypothesis ..................................................................................................................... 7
2 THE DEFINITION AND ELEMENTS OF THEFT .................................................................. 7
2.1 Historical background ....................................................................................................... 7
2.2 Elements of theft ........................................................................................................... 8
2.2.1 An act of appropriation............................................................................................. 8
2.2.2 Unlawfulness and intention ..................................................................................... 8
2.2.3 Property capable of being stolen ............................................................................ 9
2.3 Theft regarding incorporeal property ......................................................................... 9
3 ELECTRICITY AS MOVABLE CORPOREAL PROPERTY ........................................... 10
4 THE PRINCIPLE OF LEGALITY ......................................................................................... 12
4.1 Courts extending the scope of crimes and developing of common law .................. 12
4.2 Extending the operation of existing crimes through legislation ............................... 15
5 CONCLUSION ...................................................................................................................... 17
Bibliography ........................................................................................................................... 19
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, 1 INTRODUCTION
1.1 Background
Theft has always been act that is punishable by law even from ancient times. In
primitive legal systems the thief was killed if he/she was captured. 1 The formal
law systems that we use today follow a modern approach to punishing the
perpetrator through a public trial. The general rule is property capable of being
stolen must be movable corporeal property that is available in commerce and
belongs to someone else. Which brings forward the question as to whether or not
electricity can be stolen? This report will address the issues which arise from S v
Ndebele 2012 (SACR) 245 (GSJ) 27, where the court held that electricity is a
thing capable of being stolen. This judgment however, is a conflicting judgment to
S v Mintoor 1996 (1) SACR 514 (C) which held it is not capable of being stolen.
Some commenters criticise the decision in Ndebele on grounds that the judge
disregarded the principle of legality which provides that courts may not create
new crimes or extend the scope of a crime. The question of legality remains
unsolved.
1.2 Problem statement
The purpose of this research is to critically analyse the criminality of electricity
theft as decided in S v Ndebele2 and evaluate the principles of legality with
specific reference to courts developing common law and extending the field of
application of a crime.
This research will include aspects that incorporate the following:
The definition of theft;
What makes electricity capable of being stolen as movable corporeal property?
When does the principle of legality permit courts to extend the field of application
of a crime?
1
JM Burchell, „Principles of Criminal Law‟ (5 edn Juta 2016) 690.
2
2012 (SACR) 245 (GSJ) 27.
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, 1.3 Hypothesis
Although it was held that electricity can be stolen in the Ndebele case, to a
certain extent, the decision in this case infringes the nulle poena rule. The
principle of legality is incorporated in section 35(3)(l) and (n) of the Constitution.3
The principality of legality is often expressed as the nulle poena sine lege which
translates as „no punishment without law‟. In other words, a person cannot be
punished if there was no legal provision when the offence was committed. Courts
may not create new crimes.4 Therefore it is more preferable that courts leave it
up to legislation to create crimes if there is uncertainty about the definition or
scope of the crime.
2 THE DEFINITION AND ELEMENTS OF THEFT
Snyman provides a definition of theft as:
“A person commits theft if he unlawfully and intentionally appropriates movable, corporeal
property which
i. belongs to, and is in the possession of, another;
ii. belongs to another but is in the perpetrator‟s own possession; or
iii. belongs to the perpetrator‟s but is another‟s possession and such other person has a
right to possess it which legally prevails against the perpetrator‟s own right of
possession
provided that the intention to appropriate the property includes an intention permanently to
5
deprive the person entitled to the possession of such property.”
Similarly, Burchell defines theft as “Theft consists in an unlawful appropriation with
the intent to steal a thing capable of being stolen”.6 In other words, in order for theft
to take place the property that is in possession of the perpetrator must be a thing that
is capable of being stolen.
2.1 Historical background
In the past they used the old Latin terminology in Roman-law texts for the
description and analysis of theft. At first, the Romans defined the act of furtum
3
Chapter 2 of the Constitution of the Republic of South Africa of 1996.
4
Ius acceptum rule (crimes must be recognised by the law).
5
CR Snyman, „Criminal Law‟ (6 edn LexisNexis 2014) 475.
6
JM Burchell, „Principles of Criminal Law‟ (5 edn Juta 2016) 690.
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, (theft) as „carrying away‟ the property but later described the act theft as
contrectatio (handling of the property). However, the use of Latin terms has
become out-dated because theft can also be committed without the actual
physical handling of the property (i.e. theft of credit).7 Hence, the modern
preference to describe the act of theft is as an „appropriation of property‟. The act
of appropriation will be discussed further below.
2.2 Elements of theft
The four elements of theft that are required before a person can be convicted of
the crime are as follows: (1) an act of appropriation, (2) in respect of a certain
type of property (or thing); (3) which takes place unlawfully and (3) intentionally. 8
2.2.1 An act of appropriation.
A person commits an act of appropriation whereby he deprives the lawful
owner or possessor and exercises the rights of an owner in respect of the
property.9 The act consists of two components namely a negative
component, which excludes the rightful owner from his property and
secondly a positive component, which is the exercising of rights in respect
of the property as if he the owner or rightful possessor. It is important to
note that both elements must present otherwise there would be no
completed act of appropriation and the perpetrator would not be convicted
for theft but rather attempted theft in such a case.
2.2.2 Unlawfulness and intention
The act of theft excludes unlawfulness on grounds justification based on
consent by the lawful owner or possessor as well as presumed consent. In
terms of the element of intention, the perpetrators must be aware that the
property they intend to appropriate belongs to someone else. The
perpetrator must intend to permanently deprive the owner of her property.
7
S v Graham 1975 (3) SA (A); S v Kotze 1965 (1) SA 118 (A).
8
CR Snyman, „Criminal Law‟ (6 edn LexisNexis 2014) 476.
9
CR Snyman, „Criminal Law‟ (6 edn LexisNexis 2014) 479.
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, In Sibiya10, the appellant removed the complainant‟s car from the garage
without his consent and went on a joyride in it, with the intention of
returning the car to the complainant, but unfortunately the car overturned
and landed on a donga next to the road. The appellate division held that
furtum usus (temporary use of another‟s property without the intention of
permanently depriving the owner of the thing) no longer constituted as a
form of theft in our law.
Therefore in order for theft to constitute a crime, the act must be unlawful
and the perpetrator must have intention to permanently deprive the rightful
owner/possessor of the thing/ or property.
2.2.3 Property capable of being stolen
The general rule is that the property must be movable, corporeal, belong
to somebody else and be res in commercio11 (available in commerce) so
that it qualifies as property capable of being stolen. This brings the
question of whether electricity can be stolen as it is incorporeal thing
because it is not tangible but I later will discuss this. At this moment, I want
to expand on corporeal property and discuss the exceptions that occur, if
any.
A corporeal thing is an independent part that is capable to be touched or
seen however the requirement that property that is capable of being stolen
must be corporeal is no longer strictly enforced.
2.3 Theft regarding incorporeal property
In S v Graham12, a company was on the verge of being liquidated when the
received a cheque amounting to R7 153,88. However, it was later discovered that
the cheque was erroneously sent to them. The company‟s managing director was
aware of this but still went on to pay their bank overdraft and the company was
consequently charged with theft. The court held that theft of money in the form of
10
R v Sibiya 1995 (4) SA 274 (A).
11
CR Snyman, „Criminal Law‟ (6 edn LexisNexis 2014) 481-484.
12
S v Graham 1975 (3) SA (A).
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