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19CR Theft

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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
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.

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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
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.

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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 K ...
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