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Questions and Answers
In R v Wessels, the court ruled that theft occurs if a trustee lacks sufficient liquid funds to fulfill the owner's wishes regarding entrusted credit.
In R v Wessels, the court ruled that theft occurs if a trustee lacks sufficient liquid funds to fulfill the owner's wishes regarding entrusted credit.
False (B)
The Wessels dictum has been summarily elevated to a strict rule of law regarding liquid funds as a justification against theft charges.
The Wessels dictum has been summarily elevated to a strict rule of law regarding liquid funds as a justification against theft charges.
False (B)
Breach of contract can sometimes constitute theft.
Breach of contract can sometimes constitute theft.
True (A)
The existence of a liquid fund and a creditor/debtor relationship can serve as potential defenses against theft charges related to trust funds.
The existence of a liquid fund and a creditor/debtor relationship can serve as potential defenses against theft charges related to trust funds.
Accurate accounting of trust funds negates any possibility of theft, regardless of fund mismanagement.
Accurate accounting of trust funds negates any possibility of theft, regardless of fund mismanagement.
Appropriating overpayments is sometimes regarded as a form of trust money misappropriation.
Appropriating overpayments is sometimes regarded as a form of trust money misappropriation.
In S v Graham, depositing a cheque that was not due to extinguish debt on an overdrawn account is considered standard accounting practice.
In S v Graham, depositing a cheque that was not due to extinguish debt on an overdrawn account is considered standard accounting practice.
If a trustee promptly discloses the lack of liquid funds prior to any loss, theft cannot be substantiated, regardless of intent.
If a trustee promptly discloses the lack of liquid funds prior to any loss, theft cannot be substantiated, regardless of intent.
In the context of res fungibilis, the property is not consumed through its use.
In the context of res fungibilis, the property is not consumed through its use.
Theft of money via general ledger entries constitutes a form of corporeal theft.
Theft of money via general ledger entries constitutes a form of corporeal theft.
A mere false entry in a bookkeeper's books is sufficient evidence to prove that theft has been committed.
A mere false entry in a bookkeeper's books is sufficient evidence to prove that theft has been committed.
False entries in accounting records can potentially lead to charges of fraud due to potential prejudice.
False entries in accounting records can potentially lead to charges of fraud due to potential prejudice.
According to the content, manipulating credit using computers never constitutes a form of theft.
According to the content, manipulating credit using computers never constitutes a form of theft.
If a computer is used as the instrument to commit credit theft, the act of appropriation occurs by a third party.
If a computer is used as the instrument to commit credit theft, the act of appropriation occurs by a third party.
If stolen property remains in the thief's possession, the theft is considered a continuing crime.
If stolen property remains in the thief's possession, the theft is considered a continuing crime.
A person who assists a thief in acquiring or selling stolen property is not guilty of theft.
A person who assists a thief in acquiring or selling stolen property is not guilty of theft.
Theft requires the property to have been initially entrusted to the perpetrator.
Theft requires the property to have been initially entrusted to the perpetrator.
If someone innocently finds property and later discovers it's stolen, keeping it doesn't constitute theft if they had no initial intent to steal.
If someone innocently finds property and later discovers it's stolen, keeping it doesn't constitute theft if they had no initial intent to steal.
Finding abandoned property, believing it belongs to someone else, and keeping it constitutes theft.
Finding abandoned property, believing it belongs to someone else, and keeping it constitutes theft.
Altering property to make it unrecognizable to the owner does not constitute theft if the perpetrator does not intend to sell it.
Altering property to make it unrecognizable to the owner does not constitute theft if the perpetrator does not intend to sell it.
The concept of furtum possessionis (arrogation of possession) involves an owner stealing their own property from someone with a superior legal right to possess it.
The concept of furtum possessionis (arrogation of possession) involves an owner stealing their own property from someone with a superior legal right to possess it.
If a person mistakenly believes they have a right to property and take it, it still constitutes theft, regardless of their belief.
If a person mistakenly believes they have a right to property and take it, it still constitutes theft, regardless of their belief.
An appropriation act requires the complete and permanent removal of the property from the owner’s possession.
An appropriation act requires the complete and permanent removal of the property from the owner’s possession.
If a shop assistant mistakenly gives a customer too much change, and the customer realizes but says nothing and keeps the money, they have committed theft.
If a shop assistant mistakenly gives a customer too much change, and the customer realizes but says nothing and keeps the money, they have committed theft.
In cases of theft, the removal of an item must always involve the perpetrator gaining complete and permanent ownership of the property.
In cases of theft, the removal of an item must always involve the perpetrator gaining complete and permanent ownership of the property.
The determination of whether a suspect removed an item from another's control is primarily a legal question determined by statutes.
The determination of whether a suspect removed an item from another's control is primarily a legal question determined by statutes.
In embezzlement, the property is unlawfully appropriated while the property is already in the lawful possession or control of the perpetrator.
In embezzlement, the property is unlawfully appropriated while the property is already in the lawful possession or control of the perpetrator.
The precise moment when the original owner loses control of the property and the thief gains control is a legal interpretation rather than a factual determination.
The precise moment when the original owner loses control of the property and the thief gains control is a legal interpretation rather than a factual determination.
In South African law, a conviction for theft requires only proving the physical removal of property, without needing to establish intent or unlawfulness.
In South African law, a conviction for theft requires only proving the physical removal of property, without needing to establish intent or unlawfulness.
The exclusion of unlawfulness in appropriation can be justified by presumed intent, necessity, or explicit denial.
The exclusion of unlawfulness in appropriation can be justified by presumed intent, necessity, or explicit denial.
The core distinction between theft and embezzlement lies in whether the perpetrator already had lawful possession of the property before appropriating it.
The core distinction between theft and embezzlement lies in whether the perpetrator already had lawful possession of the property before appropriating it.
According to Section 12 of the Cybercrimes and Cybersecurity Act, the common law offense of theft excludes the theft of incorporeal property.
According to Section 12 of the Cybercrimes and Cybersecurity Act, the common law offense of theft excludes the theft of incorporeal property.
If John moves an item from a store shelf to his bag with the intention of paying for it later, this act automatically constitutes theft because he has moved the item.
If John moves an item from a store shelf to his bag with the intention of paying for it later, this act automatically constitutes theft because he has moved the item.
The requirements for property, unlawfulness, and intention remain unchanged between the common law definition of theft and the statutory offense of embezzlement.
The requirements for property, unlawfulness, and intention remain unchanged between the common law definition of theft and the statutory offense of embezzlement.
In the context of theft, intention as a form of culpability can be fulfilled by negligence.
In the context of theft, intention as a form of culpability can be fulfilled by negligence.
To be guilty of theft, the perpetrator must have the intention to appropriate the property, but intention regarding unlawfulness is not necessary.
To be guilty of theft, the perpetrator must have the intention to appropriate the property, but intention regarding unlawfulness is not necessary.
In a scenario where someone takes another's property, but mistakenly believes they have the right to do so, they still possess the requisite intention for theft.
In a scenario where someone takes another's property, but mistakenly believes they have the right to do so, they still possess the requisite intention for theft.
If Susara had gifted Shaniqua the expensive Chinese plate an hour before Shaniqua places the plate in her handbag and leaves with it, Shaniqua is still likely guilty of theft.
If Susara had gifted Shaniqua the expensive Chinese plate an hour before Shaniqua places the plate in her handbag and leaves with it, Shaniqua is still likely guilty of theft.
Ownership by a thief is a valid defense against a charge of theft regarding the stolen property.
Ownership by a thief is a valid defense against a charge of theft regarding the stolen property.
If Shaniqua takes Susara's plate as a prank, fully intending to return it the next day, she cannot be guilty of theft because she lacks intention to permanently deprive Susara of the plate.
If Shaniqua takes Susara's plate as a prank, fully intending to return it the next day, she cannot be guilty of theft because she lacks intention to permanently deprive Susara of the plate.
The crime of theft requires the property to be immovable.
The crime of theft requires the property to be immovable.
In a charge of theft, the mens rea element requires only the intention to temporarily deprive the owner of the item.
In a charge of theft, the mens rea element requires only the intention to temporarily deprive the owner of the item.
If someone unlawfully and intentionally pawns an item belonging to another, but in their possession, they can be charged with theft.
If someone unlawfully and intentionally pawns an item belonging to another, but in their possession, they can be charged with theft.
Appropriating property, without the owner's consent, always constitutes theft, regardless of intent.
Appropriating property, without the owner's consent, always constitutes theft, regardless of intent.
If a repair shop refuses to return your lawnmower after you pay them, that can be theft.
If a repair shop refuses to return your lawnmower after you pay them, that can be theft.
The definition of theft explicitly excludes situations where the perpetrator initially had legal possession of the property.
The definition of theft explicitly excludes situations where the perpetrator initially had legal possession of the property.
A charge of theft is still valid if the item's value is below $500.
A charge of theft is still valid if the item's value is below $500.
Borrowing a friend's bicycle without their knowledge, with the intention of returning it next week, constitutes theft.
Borrowing a friend's bicycle without their knowledge, with the intention of returning it next week, constitutes theft.
Flashcards
Theft Definition
Theft Definition
Unlawful and intentional appropriation of moveable, corporeal property.
Theft: Another's Property
Theft: Another's Property
The property belongs to another and is in their possession.
Theft: Property in Perpetrator's Possession
Theft: Property in Perpetrator's Possession
The property belongs to another but is in the perpetrator’s possession.
Theft From Own Property
Theft From Own Property
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Theft: Intent to Deprive
Theft: Intent to Deprive
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Appropriation (Theft)
Appropriation (Theft)
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Moveable Property
Moveable Property
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Corporeal Property
Corporeal Property
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Unlawfulness
Unlawfulness
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Appropriation
Appropriation
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Negotiorum Gestio
Negotiorum Gestio
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Necessity (defense)
Necessity (defense)
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Consent (defense)
Consent (defense)
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Theft of Incorporeal Property
Theft of Incorporeal Property
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Intention (in theft)
Intention (in theft)
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Intention to appropriate
Intention to appropriate
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Saakonttrekking (Removal of a thing)
Saakonttrekking (Removal of a thing)
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Removal + Appropriation
Removal + Appropriation
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Gaining Control (Theft)
Gaining Control (Theft)
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Exclusion or Deprivation
Exclusion or Deprivation
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Loss of Control (Timing)
Loss of Control (Timing)
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Verduistering (Embezzlement)
Verduistering (Embezzlement)
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Prior Possession (Embezzlement)
Prior Possession (Embezzlement)
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Theft vs. Embezzlement
Theft vs. Embezzlement
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Moment of Theft
Moment of Theft
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Theft and Stolen Property
Theft and Stolen Property
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Theft and Found Property
Theft and Found Property
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Theft by Disguise
Theft by Disguise
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Arrogation of Possession
Arrogation of Possession
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Possession Doesn't Matter
Possession Doesn't Matter
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Innocent Possession Turned Theft
Innocent Possession Turned Theft
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R v Markins Motors
R v Markins Motors
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R v Wessels (1933)
R v Wessels (1933)
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S v Visagie (1991)
S v Visagie (1991)
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Breach of Contract = Theft?
Breach of Contract = Theft?
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Defense: Liquid Fund
Defense: Liquid Fund
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Defense: Debtor/Creditor
Defense: Debtor/Creditor
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Dishonest Accounting
Dishonest Accounting
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Appropriation of Overpayments
Appropriation of Overpayments
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Overpayments as Trust
Overpayments as Trust
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"Delg" Definition
"Delg" Definition
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Res Fungibilis
Res Fungibilis
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Theft via General Ledger Entries
Theft via General Ledger Entries
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Theft via Computer Manipulation
Theft via Computer Manipulation
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Appropriation by Manipulator
Appropriation by Manipulator
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Theft as a Continuing Crime
Theft as a Continuing Crime
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Computers as Instruments of Theft
Computers as Instruments of Theft
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Assisting the Thief
Assisting the Thief
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Study Notes
- This study unit focuses on the crime of theft, covering its definition, the elements that constitute it, and various forms it can take.
Definition of Theft
- Theft is unlawfully and intentionally taking movable, tangible property.
- The property belongs to someone else and is in their possession.
- The property belongs to another but is in the perpetrator's possession.
- The property belongs to the perpetrator but is in another's possession, and that person has legal right of possession over the perpetrator.
- The intention to take the property must include the intent to permanently deprive the owner of it.
Elements of Theft
- An act of appropriation
- Regarding a certain kind of property
- Act must be committed unlawfully
- Act must be intentional, including an intention to appropriate
Theft Explained
- Theft includes embezzlement.
- It's possible to steal property temporarily in another's lawful possession, which is unlawful arrogation of possession.
Different Forms of Theft:
- Removal of property: Taking property belonging to someone else from their possession.
- Embezzlement: Appropriating property already in one's possession.
- Arrogation of possession: An owner stealing their own property from someone who has a prevailing right to possess it.
- Theft of credit: Involves the unlawful appropriation of trust funds.
Requirement of an Act
- "Appropriation" is preferred over physical handling or touching.
- An act of appropriationdeprives the lawful owner or possessor of their property.
- The perpetrator exercises the rights of an owner
- The perpetrator behaves as if they are the owner, exercising control over the property instead of the rightful owner.
- Attempted theft occurs when the owner is not deprived of control.
- To establish theft, determine if the perpetrator's actions indicated they had assumed control of the property.
Property Capable of Being Stolen
- Must be movable
- Must be tangible
- Must be available for commerce or capable of forming part of it
- Must belong to someone else (except in cases of unlawful arrogation of possession)
Res communesare properties belonging to everybody, such as water in the oceanRes derelictaeare properties abandoned by the owner (refuse)Res nulliusare properties belonging to nobody, such as wild birds
Unlawfulness
- The unlawfulness of appropriation can be excused by grounds of justification:
- Presumed intent
(negotiorum gestio) - Necessity
- Consent
Cybercrimes Act and Theft of Incorporeal Property
- Common law theft must be interpreted to include theft of incorporeal property.
Intention
- Intention is required as a form of culpability and cannot be committed negligently.
- The intention must be in respect of the property, its unlawfulness, and the act of appropriation.
Removal of a Thing (Saakonttrekking)
- X removes property belonging to Y from Y's or someone else's possession and appropriates it.
- The requirements for property, unlawfulness, and intention remain unchanged.
- Action consists of appropriating coupled with the removal from the owner's possession.
Removal of a Thing (Saakonttrekking) - Key Considerations:
- It depends on whether X removed the thing from the control of another
- Gaining control is the decisive criterion.
- Excluding or depriving Y is necessary.
- The precise moment when the owner loses control to the thief is a question of fact.
Embezzlement (Verduistering)
- The perpetrator appropriates another's property that is already in their possession.
- Theft is committed as soon as the perpetrator commits an act of appropriation with the required intention.
- It's immaterial whether the property was entrusted to the perpetrator or came into their possession by chance.
- If a person comes into possession of another's property innocently and later discovers it is stolen, they commit theft if they retain it after gaining this knowledge
- If a person finds property and appropriates it, knowing it belongs to another, they are guilty of theft.
- Theft is committed if someone alters property to make it unrecognizable to the owner.
Arrogation of Possession (Besitsaanmatiging)
- An owner steals their own property by removing it from someone who has a legal right to possess it that prevails over the owner's right.
- The accused took his vehicle to a garage for repair work and without notifying the garage he removed his motor vehicle
- Accused was convicted of theft.
Unlawful Temporary Use of a Thing (Gebruiksaanmatiging)
- Taking another's property without permission, intending to use it temporarily, and then returning it substantially in the same condition.
- Only the right of possession is stolen, not the property itself.
Theft of Credit
- Involves unauthorized appropriation of trust funds.
- Notes and coins are corporeal things capable of being stolen.
- “Money” can have a more abstract meaning as “credit”.
- Credit it not corporeal or tangible.
- The act will result in economic impacts, which most likely will be evident in the diminished balance of the bank account of the victim.
- Money in the form of credit is capable of being stolen.
- Credit is the right of a person to claim from the bank.
- Credit it not corporeol or tangible.
Theft of Trust Fund
- Entrusted credit includes money entrusted for a specific purpose, not as payment of debt, normally for the benefit of the person handing the money over.
- Whether there is a commission of theft will depend on a debtor/creditor relationship.
- It has to be determine if the money was loaned or a placed in trust.
- If trustee has enough liquid funds at his disposal in order to comply with the wishes of the owner, this would not be committed.
Entries
- False entries may lead to a charge of fraud and potential prejudice.
Theft of Information on Computers
- Manipulation of credit via computers is a form of theft.
- The manipulator of the computer commits the act of appropiation.
- Computers are instruments for theft.
Theft A Continuing Crime
- Theft is continuing as long as the stolen property remains in possession of the thief.
- One who assists the thief to acquire property is guilty of theft.
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Description
Examination of trust fund principles in theft cases, referencing R v Wessels and S v Graham. Covers fund mismanagement, liquid funds, creditor/debtor relations, and accounting practices as defenses. Discusses misappropriation and disclosure related to theft charges.
