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 03
MR LC COETZEE
(06 October 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: 05 October 2021
TOPIC SELECTED: TOPIC 1: CRIMINAL LAW (THEFT OF ELECTRICITY)
MARK RECEIVED FOR ASSIGNMENT 01: 100%
MARK RECEIVED FOR ASSIGNMENT 02: 80%
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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 lay person. The act of theft as 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 where 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
DUE Domestic Use of Energy
IEEE Institute of Electrical and Electronics Engineers
JOL Judgments Online [South Africa]
Para Paragraph
RSC Revised Statutes Canada
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 .................................................................................................. 8
2.2 Elements of theft ...................................................................................................... 8
2.2.1 An act of appropriation......................................................................................... 8
2.2.2 Unlawfulness and intention ................................................................................. 9
2.2.3 Property capable of being stolen ......................................................................... 9
2.3 Theft regarding incorporeal property.................................................................... 10
3 ELECTRICITY AS MOVABLE CORPOREAL PROPERTY ......................................... 11
4 THE PRINCIPLE OF LEGALITY ..................................................................................... 13
4.1 Courts extending the scope of crimes and developing of common law ................. 14
4.2 Extending the operation of existing crimes through legislation.............................. 17
5 CONCLUSION ................................................................................................................. 18
Bibliography ...................................................................................................................... 20
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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 is a thing capable of being stolen?
„South Africa is one of the countries of the world that electricity theft has severely plagued for
2
so many years. Electricity theft is a major problem in South Africa‟.
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. One of the
cornerstones of the Constitution of South Africa is that it clearly demarcates the
lines not to be blurred between the tasks that ought to be performed by
legislature, the executive and the judicial branches of government. 3 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, emphasising that it is not the court‟s
task to fill the gap in legislation by itself.4
1.2 Problem statement
The purpose of this research is to critically analyse the criminality of electricity
theft as decided in S v Ndebele,5 and evaluate the principles of legality with
specific reference to courts developing common law and extending the field of
application of a crime.
1
JM Burchell, ‘Principles of Criminal Law’ (5 edn Juta 2016) 690.
2
NO Shokoya and AK Raji, „Electricity Theft: A Reason to Deploy Smart Grid in South Africa‟ in:
2019 International Conference on the Domestic Use of Energy (DUE) 2019 IEEE 96.
3
CR Snyman, ‘Criminal Law’ (7 edn, LexisNexis 2021) 428.
4
CR Snyman, ‘Criminal Law’ (7 edn, LexisNexis 2021) 428.
5
2012 (SACR) 245 (GSJ) 27.
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, 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?
1.3 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.6
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.7 Iudicidis est dicere, sed non dere (the task of the
court is not to create law but to apply it),8 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,9 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
10
deprive the person entitled to the possession of such property.‟
Similarly so, Burchell,11 defines theft as consisting in „an unlawful appropriation with
the intent to steal a thing capable of being stolen.‟ In other words, in order for theft to
6
Chapter 2 of the Constitution of the Republic of South Africa, 1996.
7
Ius acceptum rule Crimes must be recognised by the law.
8
CR Snyman, ‘Criminal Law’ (7 ed, LexisNexis 2021).
9
CR Snyman, ‘Criminal Law’ (6 edn, LexisNexis 2014).
10
CR Snyman, ‘Criminal Law’ (6 edn, LexisNexis 2014) 475.
11
JM Burchell, ‘Principles of Criminal Law’ (5 edn, Juta 2016) 690.
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, take place, the property that is in the perpetrator‟s possession 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
(theft) as „carrying away‟ the property but later described the act theft as
contrectatio (physical handling of the property). This definition was accepted in
South Africa 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).12 Hence, the „appropriation of property‟ is the modern
preference to describe the act of theft. 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.13
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.14 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 if either is missing, there
would be no completed act of appropriation because the appropriation
requirement will have not been met and the perpetrator would not be
convicted for theft but rather attempted theft in such a case.
12
S v Graham 1975 (3) SA (A); S v Kotze 1965 (1) SA 118 (A).
13
CR Snyman, ‘Criminal Law’ (6 edn LexisNexis 2014) 476.
14
CR Snyman, ‘Criminal Law’ (6 edn LexisNexis 2014) 479.
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