Theft .pptx

Chapter 31 THEFT  In Roman-Dutch law, the crime comprised an exceptionally large number of acts. It covered the appropriation not merely of another’s property in the possession of such other person, but also of another’s property which was already in the perpetrator’s own possession....

Chapter 31 THEFT  In Roman-Dutch law, the crime comprised an exceptionally large number of acts. It covered the appropriation not merely of another’s property in the possession of such other person, but also of another’s property which was already in the perpetrator’s own possession. The following is an example of the last-mentioned form of theft: Fearing that her house may be burgled while she is away on holiday, my neighbour requests me to keep a bottle of precious wine belonging to her in my house and to look after it while she is away. I agree to do so, receive the bottle of wine and put it away in my house. However, before my neighbour returns from holiday, I drink all the wine myself. This type of conduct, which consists in appropriating someone else’s property  Theft Definition:The act of theft was described by the Romans as contrectatio. Generally speaking, contrectatio meant a physical handling of the property, which almost always involved touching the property. Today, it is clear that one may commit theft without necessarily touching the stolen property, for example where I drive somebody else’s sheep from her land onto my own land Elements o Unlawfulness  Consent? Negotiorum gestio? De minimus rule? o Intent o Appropriation o Property must be able of being stolen  Excludes: immoveables, incorporeals, res extra commercium, res sua A continuing crime o Continues to be committed for as long as the thief remains in possession of the stolen property Digression = theft of credit and unauthorised appropriation of trust funds Acquiring effective control of the property  Embezzlement Definition = theft by conversion: In embezzlement, how X possesses the property is immaterial. For example, whether the animal that X appropriates accidentally walked onto X’s land or its owner entrusted it to her is immaterial. The following are examples of acts amounting to X’s appropriation of Y’s property, which is already in X’s possession: where X consumes the property (eg she eats Y’s food or burns Y’s firewood) where she sells it where she donates it where she exchanges it for something else (Van Heerden 1984 (1) SA 666 (A)) where she uses it to pay her debts The conduct of somebody who finds or picks up an article that somebody else has lost and who then keeps it for herself, or, for example, uses, consumes or sells it, may in certain circumstances amount to theft. Thus, if the finder knows who the owner of the article is or how to trace her, but fails to inform the owner and, for example, consumes it herself, her conduct would amount to an appropriation of the article Elements o Unlawfulness o Property o Intention o Appropriation*  Theft by false pretences Elements: A person commits theft by false pretences if she unlawfully and intentionally obtains movable, corporeal property belonging to another, with the consent of the person from whom she obtains it, such consent being given as a result of a misrepresentation by the person committing the offence, and she appropriates it. o Theft (all elements) o Misrepresentation (all elements the same as fraud) Separate classification necessary?  Possession of stolen property Section 36 of the General Law Amendment Act 62 of 1955 Elements o Goods referred to in section 36 o Goods found in possession of a person o Reasonable suspicion that the goods have been stolen o Inability to give a satisfactory explanation of the possession Constitutionality of section 36? o Osman v Attorney-General, Transvaal What constitutes a satisfactory account? Objective test o S v Aube Confessions and admissions  Receiving stolen property Section 37 of the General Law Amendment Act 62 of 1955 Elements o Possession o A reasonable cause for believing Constitutionality of section 37 o S v Manamela Second-Hand Goods Act 6 of 2009  Unauthorised borrowing Section 1(1) of the General Law Amendment Act 50 of 1956 Elements o Removal of property o Without consent o Control o Fault