Criminal Law Textbook Chapter 8 PDF

CRIMES AGAINST PROPERTY CHAPTER XVIII CRIMES RELATING TO APPROPRIATION OF PROPERTY...

CRIMES AGAINST PROPERTY CHAPTER XVIII CRIMES RELATING TO APPROPRIATION OF PROPERTY A THEFT 1 Definition A person commits theft if he unlawfully and intentionally appropriates movable, corporeal property which (a) belongs to, and is in the possession of, another; (b) belongs to another but is in the perpetrator’s own possession; or (c) belongs to the perpetrator but is in another’s possession and such other person has a right to possess it which legally prevails against the perpetrator’s own right of pos- session provided that the intention to appropriate the property includes an intention permanently to deprive the person entitled to the possession of the property, of such property.1 ________________________ 1 The precise reasons for this definition of the crime appear from the discussion which follows. The following definition put forward in Gardiner and Lansdown 2 1652 has been accepted as correct in vari- ous decisions, such as Von Elling 1945 AD 234 236; Harlow 1955 3 SA 259 (T) 263; Sibiya 1955 4 SA 247 (A) 250–251, and Kotze 1965 1 SA 118 (A) 125: “Theft is committed when a person, fraudulently and without claim of right made in good faith, takes or converts to his use anything capable of being sto- len, with intent to deprive the owner thereof of his ownership or any person having any special property or interest therein of such property or interest.” This definition is unacceptable. It was, for all practical pur- poses, taken over from s 1 of the English Larceny Act of 1916, which did not reflect Roman-Dutch law, and which in any event no longer applies even in England. Necessary requirements such as unlawfulness and intention are not mentioned, or are clothed in unacceptable, outdated and vague expressions such as “fraudulently” and “without claim of right made in good faith”. The definition formulated in Hunt-Milton 579, on the other hand, is too short. It reads: “Theft consists in an unlawful contrectatio with intent to steal of a thing capable of being stolen.” This is no real definition, but a petitio principii. The reader re- mains in the dark about the meaning of contrectatio, “intent to steal” and “thing capable of being stolen”. The definition in Hunt-Milton is based partially on the classical model for the definition of the crime. The definition in the text is based on the “appropriation model” for the crime. There is more than enough au- thority in the case law for the use of the appropriation model. For other, short definitions of theft, see Jona 1961 2 SA 301 (W) 316G; De Jager 1965 2 SA 616 (A) 617 and Visagie 1991 1 SA 177 (A) 181H–I: “ ’n Bondige, en aldus onvolledige, omskrywing van diefstal is die wederregtelike, opsetlike toe-eiening deur ’n persoon van iemand anders se roerende liggaamlike saak.” [continued] 421 422 SNYMAN’S CRIMINAL LAW 2 Elements of crime The elements of the crime, applicable to all forms of the crime, are the following: (a) an act of appropriation; (b) in respect of a certain type of property; (c) which takes place unlawfully and (d) intentionally (including an intention to appropriate). 3 Unusual aspects of crime What is today regarded as theft in our law differs in some important respects from what is regarded as theft in other legal systems, and in all probability even from what an ordinary lay person would regard as theft. It is feasible right at the outset to emphasise these unusual aspects of the crime. In the first place, theft in our law is not limited to acts in respect of other people’s property which is in their possession. It also comprises acts in respect of other people’s property which happens to be in X’s own possession or control. The following is an example of this type of theft: Fearing that his house may be burgled while he is away on holiday, my neighbour requests me to keep a bottle of precious wine belonging to him in my house and to look after it while he 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. I then commit theft of the wine. This type of conduct, which consists in appropriating someone else’s property already in X’s possession or control, is known as embezzlement.2 Unlike most other legal systems, embezzlement in our law is not a separate crime, but merely a form of theft. In the above definition of theft in paragraph 1, instances of embezzlement are covered by the words in paragraph (b): “belongs to another but is in the perpetrator’s own possession”. Because theft comprises cases of embezzlement, it is not correct to define theft in our law in terms of the removal of another’s property. A second unusual characteristic of the crime in our law is that it can be committed even if X takes back his own property which is temporarily in another’s lawful possession, as where X, who has borrowed money from Y, has pledged his watch to Y as security for the payment of the debt, and then, before paying his debt to Y, withdraws it from Y’s possession without his consent. In the above definition of the crime this type of conduct is covered by the words in paragraph (c). This form of theft may be described as the unlawful arrogation of the posses- sion of a thing.3 Since such conduct also amounts to theft, it is incorrect to describe theft in our law in terms of the appropriation of somebody else’s property. 4 Latin expressions sometimes used Since the essence of theft has been accepted as an unlawful, intentional appropriation of certain kinds of property, use of Latin terminology from Roman and Roman-Dutch law adds nothing to the need for legal certainty. Hence, describing the act in theft as contrectatio, the requirements of unlawfulness and awareness of unlawfulness as fraudulosa and the intention requirement as animus furandi is best avoided.4 ________________________ Generally speaking the definition given in the text above covers the most important requirements for the crime as it developed in Roman-Dutch law. However, our courts have developed a further form of theft which departs from the general requirements for the crime contained in the definition given above to such an extent that it cannot be accommodated in the definition given above. This form of theft can be de- scribed as “the unauthorised appropriation of trust funds”. If one endeavours to incorporate also the latter form of theft into the general definition of the crime, such an all-embracing definition will be so long that it will no longer qualify as a “definition” (in the sense of a concise résumé of the requirements for the crime) of the crime. For this practical reason no attempt was made to formulate a definition of the crime which also expressly covers the appropriation of trust funds. Snyman in his A Draft Criminal Code for South Af- rica formulated a definition which also covers the appropriation of trust funds (see s 15.1 of the Draft Code). However, this definition, which is very complete, is so long that it covers two pages! In customary criminal law theft of public resources is a crime, but some sources classify theft of private property as a crime while others regard it as a delict – Myburgh 90; Botha 44; Labuschagne and Van den Heever 1991 CILSA 352. Theft is required to be committed intentionally in customary law – Myburgh 90. 2 Infra par 12. 3 Infra par 13. 4 The views expressed in this regard in Harper 1981 2 SA 638 (D) 665 are in agreement with the view [continued]  CRIMES RELATING TO APPROPRIATION OF PROPERTY 423 The crucial requirements of the crime are nowadays simply described with the aid of the concept of appropriation. The requirement of an act is described as an act of appropriation and the additional intention required for a conviction of the crime as an intention to appropriate. This model is applied in the legal systems on the European continent and to a large extent also in English law after 1968. The concept of appropriation is flexible enough to encompass all the different ways in which the crime can be committed according to our common-law sources. It is also perfectly reconcilable with what our courts regard as constituting theft. It is susceptible to systematic analysis, and the word “appropriation” is (unlike contrectatio) also readily understandable to a lay person. Thus the principle of maximum certainty in defining offences, as underpinned by the legality principle enshrined in the Constitution, is given effect to by the use of the term “appropriation”. What exactly the concept of appropriation entails will become clear when the act of appropriation and the intention to appropriate are discussed below.5 5 Different forms of theft Theft can be committed in various ways. One can distinguish the following four forms of committing the crime: (a) The removal of property X commits this form of theft if he removes Y’s property, which is in Y’s (or somebody else’s) possession, and appropriates it. This form of theft comes nearest to the ordinary lay person’s view of what theft comprises. This form of theft is set out in subparagraph (a) of the definition of theft given above. (b) Embezzlement X commits this form of theft if he appropriates Y’s property which hap- pens already to be in X’s possession or control. This form of theft is set out in subparagraph (b) of the definition of theft given above. (c) Arrogation of possession X commits this form of theft if he takes his own property from the possession of Y, who has a right to its possession which prevails against the owner, for example, by virtue of a lien or a pledge. Here X steals, as it were, his own property. The following is an example of the commission of this form of the crime: X wishes to borrow money from Y. Y is prepared to lend X the money only if X gives him his (X’s) watch as security for the repayment of the debt. X gives Y his watch and Y lends X the money. In terms of the agreement, X will get his watch back only after he has repaid Y the amount of money owing. However, before X has repaid Y the money, X takes the watch into his own possession without Y’s consent. This type of theft was known in Roman law as furtum possessionis. This form of theft is set out in subparagraph (c) of the definition of theft given above. (d ) Theft of credit, including the unlawful appropriation of trust funds X commits this form of theft if he steals money in the form of credit. In most cases the credit has been entrusted to X with the understanding that it is to be used in a certain way, whereupon X then violates the terms under which he is to use it by employing it for some other purpose – usually for his own advantage. What makes this form of theft so different from other forms of the crime is that X commits theft despite the fact that what he steals is neither a corporeal thing nor does it belong to somebody else. It differs from the ordinary principles governing theft to such an extent that it cannot be accommodated under the definition of the crime given above without radically amplifying the ordinary meaning of the words. 6 Arrangement of discussion The further discussion of the crime will be arranged as follows: Firstly, in paragraphs numbered 7 to 10, there will be a discussion of the four general elements of the crime identified above. In this discussion no distinction will be made between the different forms of theft, since the four requirements mentioned apply to all the forms of theft. ________________________ adopted in the text. 5 Infra pars 7(b) and 10(b). 424 SNYMAN’S CRIMINAL LAW Thereafter, in paragraphs numbered 11 to 15, the four different forms of theft, namely the removal of a thing, embezzlement, the unlawful arrogation of possession and theft of credit will be discussed. In this discussion the emphasis will be on those particular rules which apply to each of these particular forms of the crime only. Finally, in the paragraphs numbered 16 and 17, the question whether a difference is drawn between perpetrators, accomplices and accessories after the fact in theft is discussed. 7 The requirement of an act (a) “Appropriation” preferable to contrectatio In Roman and Roman-Dutch law the act required to commit theft was described as a contrectatio. Contrectatio originally meant the handling or touching of a thing. Our courts still use the term contrectatio as a description of the act, but it is clear that our law has long since reached the stage where a thing can be stolen without necessarily being touched or physically handled: one need think only of the situation where X chases the chickens of Y, his neighbour, off Y’s property and onto his own without even touching them. In the theft of credit too, there is as a rule no physical contact with any specific notes or coins. (b) Act of appropriation6 In theft in the form of the removal of property the act of ap- propriation consists in any act in respect of property whereby X: (i) deprives the lawful owner or possessor of his property; and (ii) himself exercises the rights of an owner in respect of the property.7 X thus behaves as if he is the owner or person entitled to the property whereas he is not, and in so doing he exercises control over the property himself in the place of the person having a right to it.8 An act of appropriation consists of two components: a negative component (namely the exclu- sion of Y from his property) and a positive component (namely X’s actual exercise of the rights of an owner in respect of the property in the place of Y). If only the second component has been complied with, but not the first, there is no completed act of appropriation. This explains why X does not commit theft if he merely points out to Z a certain property as one belonging to him (X) whereas in fact it belongs to Y, then “sells” the thing to Z, but his (X’s) fraudulent conduct is discovered before Z is able to remove the thing. In a set of facts such as this the real owner, Y, has not yet been excluded from the control over his property, and therefore there has been no compliance with the negative component of the appropriation requirement, although the positive component has been complied with.9 For the same reason X will not be convicted of completed theft if he is apprehended before he has succeeded in depriving Y of his thing, although he was already in the process of com- mitting acts indicating that he has arrogated to himself the rights of an owner over the thing. An example of such a case is where X, wishing to steal Y’s motor car, is apprehended while he is still tampering with the electrical wiring below the steering column but has not yet succeeded in starting the car. He can, however, be convicted of attempted theft.10 The view held in some earlier cases that for theft to be committed it is sufficient that there be an assumption of control, even if Y was not deprived of his property,11 is incorrect.12 If this ________________________ 6 For a detailed exposition of the concept of appropriation, see Snyman 1975 THRHR 29 37–38. 7 Tau 1996 2 SACR 97 (T) 102a–b; Nkosi 2012 1 SACR 87 (GNP) par 20. 8 Snyman 1975 THRHR 29 37–38; Loubser 64. 9 Nkosi 2012 1 SACR 87 (GNP) par 20. It is submitted that it is this principle that underlies the acquittals in Makonie 1942 OPD 164 and Strydom 1952 2 SA 397 (T). 10 Jacobs 1955 2 PH H187 (W); Josiya 1970 4 SA 549 (R). 11 M 1982 1 SA 309 (O) 312C–D; Hunt-Milton 593–596.  CRIMES RELATING TO APPROPRIATION OF PROPERTY 425 is all that is required to constitute an act of theft, it would be impossible to distinguish between attempted and completed theft. In the example quoted in the previous paragraph of X being apprehended in Y’s motor car, X has already “assumed” control of the car; it is nevertheless clear that he is not guilty of completed theft, but only of attempted theft. The principle that the mere assumption of control over an article is not sufficient to consti- tute an act of theft, and that it is further required (for completed theft) that X by his conduct should have excluded Y from his property, is clearly underlined by two judgments, namely Tau13 and Mzandi.14 In Tau15 X exercised control (or at least assumed control) over a piece of raw gold, but the security in the smelting house of the gold mine in which the act took place was so tight that he would never have succeeded in removing the raw gold from the smelting house. The court held that X had not committed theft of the raw gold because he had never succeeded in ex- cluding Y (the gold mine which owned the raw gold) from exercising control over it.16 In Mzandi17 X broke into a house, placed articles such as a hi-fi set in a bag and placed it underneath a bed. However, he never removed the article from the house. Apparently his intention was to return later, when it was safer for him, and then to collect the bag, but this never happened. The court correctly held that X had not committed theft of the articles but at most attempted theft, because the real owner had never lost control of his articles. Although X had exercised the rights of an owner, the real owner had never been deprived of the articles. The fact that appropriation consists of the two components mentioned above does not mean that all acts of appropriation necessarily consist of two separate events. It means only that one cannot assume that there has been a completed act of appropriation unless X’s exercising of the rights of an owner in respect of the property has also led to Y being actually deprived of his property. In the vast majority of instances of theft Y’s exclusion from his property and X’s exercising of the rights of an owner take place by means of a single act. However, in excep- tional cases the negative component of the appropriation may be separated from the positive component, as where X throws objects off a moving train and picks them up later. If he is ________________________ 12 Tau 1996 2 SACR 97 (T); Nkosi 2012 1 SACR 87 (GNP) par 20. 13 1996 2 SACR 97 (T). 14 2011 1 SACR 253 (WC). 15 1996 2 SACR 97 (T), discussed by Snyman 1998 TSAR 118. Tau’s case was followed in Nkosi supra par 20 and Mekula 2012 2 SACR 521 (ECG) pars 6–7. 16 See 102b–c, g–h, i–j. The factual scenario in Tau may be contrasted with that in Chaba 2019 3 All SA 103 (FB) pars 58–60, where the huge area of a mineshaft was indicative of a lack of ability to control the re- moval of ore. Moreover, mere assumption of control is not sufficient for a conviction of completed theft, as was wrongly held in Ncube 1998 1 SACR 174 (T) 175. In this case X and Y were arrested and convict- ed of theft after they moved or lifted a box from the back of an open delivery vehicle with the intention of stealing it. Z, the driver of the delivery van, was never deprived of the box and must have been very sur- prised to learn afterwards of a theft conviction relating to a carton from her delivery van which she was never deprived of and which she had never even suspected of having disappeared (cf the evidence on 176b)! The judgment in Newman 1998 1 SACR 94 (C) is more acceptable. In this case the court refused to convict X and Y even of attempted theft in the following circumstances: they broke into a house, and in an apparent attempt to steal, had only opened the cupboards in the house and thrown the contents on the floor, when they were apprehended by the police. The court correctly did not work with the concept of contrectatio but instead required an act of appropriation (98b). It is clear that at the time they were appre- hended X and Y had already assumed control of the articles, although they had failed to deprive Z of the articles. The judgment in Nkosi 2012 1 SACR 87 (GNP) par 20 follows the law as set out in the text. 17 2011 1 SACR 253 (WC). 426 SNYMAN’S CRIMINAL LAW apprehended after throwing them off the train but before collecting them from the ground, he can at most be convicted of attempted theft.18 The exposition of the act of appropriation thus far has been limited to cases of theft in the form of the removal of property. In cases of theft in the form of embezzlement it is only the positive aspect of appropriation that matters; the negative component of the concept, which consists of Y’s exclusion from the property, in reality plays no role, because in these cases Y does not have control or possession of the property – X already has control of the property. Theft is not a crime that can only be committed by X with his own hands or body. The act of appropriation can also be committed indirectly, that is, through the instrumentality of anoth- er.19 X may even use the owner (Y) himself as an innocent instrument, as where he makes Y, who is unaware of the relevant facts, believe that an article belonging to Y in fact belongs to him (X), and induces Y to hand it to him (X). 8 Property (things) capable of being stolen Theft can be committed only in respect of certain types of property (or things). However, as will be pointed out, there are certain excep- tions to this rule. To qualify as property capable of being stolen, the property must comply with the following requirements: (a) The property must be movable. An example of immovable property is a farm. There- fore, one cannot steal part of a farm by moving its beacons or fences.20 If part of an immova- ble property is separated from the whole, it qualifies as something that can be stolen; examples in this respect are maize cobs separated from maize plants21 and trees cut down to be used as firewood.22 (b) The property must be corporeal, that is, an independent part of corporeal nature. Thus, one can steal neither an idea,23 nor “board and lodging”.24 If X unlawfully (ie, without con- sent) “takes over” “an idea” discovered or invented by Y dealing with, for example, how to build a certain type of machine, or unlawfully copies an architectural plan drawn up by Y, representing it as his own, or if X, a musician, sings a tune composed by Y on a CD represent- ing it as his own composition, X cannot be charged with theft of such an idea, patent, “plan” or “tune”. Y may take legal action against X for X’s violation of copyright, patent right or some principle of intellectual property law. It is also conceivable that X may render him guilty of fraud if he fraudulently represents a plan or tune to be his own whereas it is in fact not his own. It follows that claims or rights cannot be stolen, and that mere breach of contract cannot amount to theft.25 The rule that only corporeal property is capable of being stolen should, however, be viewed circumspectly. Since Roman times the law has recognised the possibility that an owner may ________________________ 18 Cf the facts in De Swart 1948 1 PH H49 (C): it was alleged that X and Y wanted to steal clothes from a hall by, firstly, throwing them out of the window and then, later, collecting them outside the hall. Howev- er, it was proved only that they had thrown them out of the hall. They were correctly not found guilty of theft. 19 Karolia 1956 3 SA 569 (T); Bergh 1975 3 SA 359 (O) 369H; Graham 1975 3 SA 569 (A). 20 On the rule that movable property cannot be stolen, see D 47 1 1 8; D 47 2 25 pr; Inst 2 6 7; Voet 47 2 3; Matthaeus 47 1 1 8. 21 Skenke 1916 EDL 225. 22 William 7 HCG 247. See further Hendricks 17 CTR 470; Shandu 1927 TPD 786 (lead piping detached from a house). 23 Cheeseborough 1948 3 SA 756 (T). 24 Renaud 1922 CPD 322. 25 Gebhard 1947 2 SA 1210 (G); Matlare 1965 3 SA 326 (C). On the problems relating to theft of infor- mation through a computer, see Van der Merwe 195–199, Skeen 1984 SACC 262; Ebersöhn 2004 THRHR 22.  CRIMES RELATING TO APPROPRIATION OF PROPERTY 427 steal his own thing from a possessor (furtum possessionis, or “the unlawful arrogation of the possession of a thing”).26 Yet is it really the thing itself that is stolen here? While it is true that the act is here directed at a corporeal thing, what is infringed is the possessor’s right of deten- tion, which is a right and not a thing. Furthermore, as will be seen in the discussion below of the theft of money, the courts have long recognised that when money is stolen by the manipu- lation of cheques, banking accounts, funds, false entries, and so forth, it is not corporeal things such as specific notes or coins which are stolen but something incorporeal, namely “credit”.27 In Harper28 it was held that shares (as opposed to share certificates) could be stolen. The court stated that the idea that only corporeal property could be stolen was due to the rule of Roman law that there had to be some physical handling (contrectatio) of the property, and added that once the courts have moved away from the requirement of a physical handling, the reason for saying that there can be no theft of an incorporeal object in any circumstances would seem to have fallen away. However, the basic rule is discarded only in cases of theft of money or credit – which will be discussed below.29 Can electricity be stolen? There are two opposing judgments on this matter. In Mintoor30 it was held that electricity cannot be stolen. The court based its decision on inter alia the consid- eration that electricity is not a particular material, but a situation of tension or movement of molecules. It is a form of energy. A cyclist who holds onto a moving truck can be said to “appropriate” for himself the truck’s “energy”, but he does not commit theft of the “power” or “energy”.31 In Ndebele,32 on the other hand, the court ruled that it can be stolen, because the energy in electricity amounted to an appropriation of a characteristic of a thing, namely an electron. The court based its finding on reasoning analogous to the reasoning in previous decisions which held that money in the form of credit may be stolen. It is submitted that the decision in Mintoor is to be preferred and that electricity is accord- ingly not to be regarded as a thing capable of being stolen in terms of the common-law crime of theft.33 Such a view accords better with the cardinal principle of legality in criminal law,34 according to which a court may not create a crime or substantially alter the meaning or scope of the elements of an existing crime, especially by means of analogy. It may be conceded that, given the large-scale unlawful appropriation of electricity in this country, there is a great need for the criminalisation of this type of conduct. When Mintoor was decided in 1996, the Elec- tricity Act 41 of 1987 which then applied, contained a provision in section 27(2) stating that any person who abstracts or diverts any electric current commits an offence and is liable on conviction to the penalties which may be imposed for theft. This Act of 1987 was replaced by a new Electricity Regulation Act, 4 of 2006, which for some inexplicable reason does not contain a similar provision. ________________________ 26 Infra par 13. 27 See, eg, Kotze 1965 1 SA 118 (A) 123; Graham 1975 3 SA 569 (A) 576. See further infra par 15. 28 1981 2 SA 638 (D) 666. See also Kimmich 1996 2 SACR 200 (C) 210f–g. 29 Infra par 15. 30 1996 1 SACR 514 (C). 31 S 27(2) of the Electricity Act 41 of 1987 provided that any person who abstracts, branches off or diverts any electric current or uses such current commits an offence and is liable on conviction to the penalties which may be imposed for theft. 32 2012 1 SACR 245 (GSJ). 33 In her discussion of the Ndebele judgment Jordaan 2012 SACJ 316 expresses a similar concern about the unacceptable consequences of the decision. However, for a contrary view, see D’Oliveira 2012 THRHR 312, who welcomes the decision in Ndebele, describing it as “long overdue and realistic”. 34 Supra I F 11. 428 SNYMAN’S CRIMINAL LAW It is submitted that if the legislature fails to criminalise this type of conduct, it is not the task of the courts to fill this vacuum merely because they think it would be a good thing to crimi- nalise such conduct. It is the task of the legislature to do this. It is not the task of a court to fill what it considers gaps in legislation by itself creating a crime or extending the scope of an existing crime by analogy. Iudicis est ius dicere, sed non dare – the task of a court is not to create law but to apply it. This is one of the cornerstones of our democratic Constitution, namely that the lines of demarcation between the tasks of the legislature, the executive and the judicial branches of government should not become blurred. The judgment in Ndebele will lead to the concept of “a thing capable of being stolen” becoming too abstract and wide. It may lead to the mere unauthorised use of an idea, a plan (such as an architectural design), information, the plot of a story or the tune which a successful pop artist sings, also amounting to theft. Such a situation would be untenable. Where is one then to draw the line? (c) The property must be in commercio, that is, available in commerce or capable of form- ing part thereof. Property is available in commerce if it is capable of being sold, exchanged or pledged, or generally of being privately owned. The following types of property are not cap- able of forming part of commercial dealings and are therefore not susceptible to theft: (i) Res communes, that is, property belonging to everybody, such as the air, the water in the ocean or in a public stream.35 (ii) Res derelictae, that is, property abandoned by its owners with the intention of ridding themselves of it.36 Property which a person has merely lost, such as money which has fallen out of a person’s pocket, is not a res derelicta, because such a person did not have the intention to get rid of it. It can normally be accepted that articles thrown out by householders in garbage containers or thrown onto rubbish dumps are res derelictae. (iii) Res nullius, that is, property belonging to nobody although it can be the subject of pri- vate ownership, such as wild animals or birds.37 However, if such animals or birds have been reduced to private possession by capture, for example, birds in a cage or animals in a zoo, they can be stolen.38 (d) In principle the property must belong to somebody else. One cannot, therefore, steal one’s own property. The exception to this rule is the case of the unlawful arrogation of the possession of a thing (furtum possessionis).39 If property belongs to two or more joint owners, the one can steal from the other(s).40 9 Unlawfulness The unlawfulness of the appropriation may be excluded by grounds of justification such as consent, presumed consent (negotiorum gestio)41 and necessity. In practice the only ground of justification which is regularly encountered is consent. The appropriation is not unlawful where Y consents to it, even if X is unaware of such consent or thinks that no consent has been given.42 Where Y, as part of a prearranged plan to trap X, fails to prevent X from gaining possession of the property, although he knows of X’s plans, there ________________________ 35 Laubscher 1948 2 PH H46 (C); Mostert 2010 1 SACR 223 (SCA) pars 22–23, discussed by Van der Schyff and Van der Walt 2012 SACJ 297. 36 D 47 2 43 5; Madito 1970 2 SA 534 (C); Rantsane 1973 4 SA 380 (O); Cele 1993 2 SACR 52 (N) 54i. 37 D 47 2 26 pr; Mafohla 1958 2 SA 373 (R) (wild kudu); Mnomiya 1970 1 SA 66 (N) 68 (no theft of honey or wild bees). 38 Inst 2 1 13–14; Maritz (1908) 25 SC 787 (fish in a river); Sefula 1924 TPD 609 610 (animals in zoo); S 1994 1 SACR 464 (W) (snake removed from zoo). 39 Infra par 13. 40 D 47 2 45; Voet 17 2 28; 47 2 4; Pretorius 1908 TS 272; Macleay 1912 NPD 162. 41 Eg, while my neighbour is away on leave his house is threatened by flood waters. I take his furniture and store it in my house until he returns. See supra IV E. 42 D 47 2 48 3; D 47 2 46 8; Inst 4 1 8; Matthaeus 47 1 1; Huber HR 6 5 20.  CRIMES RELATING TO APPROPRIATION OF PROPERTY 429 has been no valid consent to the taking. Y has merely allowed it in order to trap X.43 Where Y hands over his property because he is threatened with personal violence if he refuses, there is similarly no consent and the taking amounts to theft.44 The position is the same where consent is obtained by fraud or false pretences.45 10 Intention requirement (a) General It is firmly established that the form of culpability required for theft is inten- tion. The intention to steal is sometimes referred to as animus furandi. The crime can never be committed negligently. According to the general principles of intention, the intention (and more particularly X’s knowledge) must relate to the act, the definitional elements of the crime as well as the unlawfulness. The Supreme Court of Appeal has endorsed this view when, in a unanimous judgment by five judges in Boesak,46 it held that “(t)he intent to steal... is present where a person (1) intentionally effects an appropriation (2) intending to deprive the owner permanently of his property or control over his property (3) knowing that the property is capable of being stolen, and (4) knowing that he is acting unlawfully in taking it”. The act of appropriation, the property requirement and the requirement of unlawfulness have all been discussed above. In the discussion which follows the intention in respect of each of these three basic requirements will be discussed separately. (b) Intention in respect of the act – ie, intention to appropriate All authorities agree that intention in respect of the act does not consist merely in X’s knowledge or awareness that he is, generally speaking, “performing some or other kind of act” in respect of the property. Even an awareness by X that he is handling the property or exercising control over it, is not sufficient, even if such awareness is accompanied by knowledge that the property belongs to somebody else and that such other person has not consented to the handling of the property. All authori- ties agree that, in order fully to describe the intention required for theft, some further intention, apart from that mentioned above, is required. If no such additional intention were required, conduct such as the following, which by general agreement ought not to be punishable as theft, would indeed qualify as theft: (a) X maliciously conceals Y’s property so that he cannot find it;47 (b) X temporarily uses Y’s property without his permission but returns it;48 (c) X takes Y’s property without his permission and keeps it as pledge in order to bring pressure to bear upon Y to repay a debt he owes X;49 or (d) X simply damages Y’s property or sets fire to it. To qualify as theft, X’s state of mind must encompass something more than merely the knowledge, described above, relating to the property and the unlawfulness, and something more than mere knowledge relating to the act in the sense “that X knows that he is handling an article or is in the process of gaining control of it” or something similar. This additional inten- tion refers to the objective which X aims to achieve by means of his act; unlike the intention relating to the property and the unlawfulness, it relates to X’s will (conative element of in- tention) and not his knowledge of existing facts (cognitive element of intention). It is now firmly established in our law that the additional intention referred to above consists of an intention to appropriate the property. This intention best describes the mental state which is characteristic of a thief. Such a description of the intention requirement is completely reconcilable with our case law; the courts, including the Supreme Court of Appeal,50 regularly ________________________ 43 Inst 4 1 8; Ex parte Minister of Justice: in re R v Maserow 1942 AD 164; Sawitz 1962 3 SA 687 (T). 44 Ex parte Minister of Justice: in re R v Gesa; R v De Jongh 1959 1 SA 234 (A). 45 Ex parte Minister of Justice: in re R v Gesa; R v De Jongh supra 240; Hyland 1924 TPD 336; Stanbridge 1959 3 SA 274 (C) 280; Heyns 1978 3 SA 151 (NC). 46 2000 1 SACR 633 (SCA) par 97. 47 Lessing 1907 EDC 220; Engelbrecht 1966 1 SA 210 (C). 48 This is not theft – infra par 14. 49 This is not theft – infra par 10(c). 50 Visagie 1991 1 SA 177 (A) 181; Boesak 2000 1 SACR 633 (SCA) par 97. 430 SNYMAN’S CRIMINAL LAW use the expressions “appropriate” and “intention to appropriate” in their descriptions of the crime. What was said above51 in respect of the act of appropriation applies mutatis mutandis to the intention to appropriate: just as the act of appropriation presupposes both (a) an exclusion of Y from his property (negative component), and (b) X’s exercising of the rights of an owner (positive component), so the intention to appropriate encompasses both (a) the intention of depriving Y of is control over the property (negative component) and (b) the intention of exer- cising the rights of an owner over the property himself, instead of Y (positive component). (c) Intention permanently to deprive the owner The intention of depriving the owner of his property (negative component) is further qualified in an important respect, namely that X must intend permanently to deprive the owner of his property. Only then does X have the intention to appropriate the property. Where he intends to deprive Y of his property only temporarily he at all times respects and recognises Y’s ownership or rights in respect of the property. This is contrary to the very essence of appropriation. The usual meaning of “appropriate” is “to make something your own”; this, however, cannot be said to happen where X intends presently to restore the property to Y substantially intact. This aspect of the concept of intention to appropriate has an important practical result, namely that to use property temporarily with the intention of restoring it to the owner (furtum usus) does not amount to an appropriation and therefore does not constitute theft. This result is in complete harmony with the law applied in the courts, which requires an intention permanently to deprive the owner of his property.52 The meaning of “intention to appropriate” is therefore wide enough to include an intention permanently to deprive Y of his property. Where X takes Y’s property without his consent, not in order to deal with it as if he were the full owner, but merely to keep it as a pledge or security in order to bring pressure to bear upon Y to repay a debt which Y owes X, X does not commit theft: he remains willing to restore the property to Y as soon as Y has paid his debt, and therefore has no intention of unlawfully appropriating it.53 (d) Overlapping of theft and injury to property There is one type of situation where an application of the requirement of intention to appropriate may result in a conclusion in respect of which there may be differences of opinion. This is where X destroys Y’s property before there can be any question of its utilisation by X. One of the rights of an owner is to destroy his own property, and, if X destroys Y’s property, it may be argued that in so doing X has as- sumed the rights of an owner in respect of the property and has therefore appropriated it. In this way acts which in reality amount to injury to property are punished as theft. It is submit- ted that the borderline between theft and injury to property is not watertight in all respects, and that in cases such as these where property is destroyed, there is a limited field in which these two crimes overlap. It is submitted that in order to decide whether, in such a case, X should be charged with theft or injury to property, one has to decide whether it is the appropriation or the destruction aspect of X’s conduct that is most evident.54 If one requires an intention to deprive the owner of his property permanently, without also requiring an intention to appropriate, it is not possible to demarcate satisfactorily theft from acts which do not amount to theft. It will then be impossible to distinguish satisfactorily ________________________ 51 Supra par 7(b). 52 Infra par 14. The leading case is Sibiya 1955 4 SA 247 (A). 53 Van Coller 1970 1 SA 417 (A). 54 For examples of cases in which X has been charged with theft but the evidence revealed that he had only destroyed the property, see the cases referred to infra fn 55.  CRIMES RELATING TO APPROPRIATION OF PROPERTY 431 between theft and cases of damage to property. There are instances where the aspect of dam- age or destruction in X’s act is far more evident than the aspect of appropriation or theft, and where X should not be convicted of theft but rather of injury to property. Examples of such instances would be where X, out of spite against his neighbour Y against whom he harbours a grudge, on a visit to Y snatches a glass flowerpot belonging to Y and throws it out of the window onto the veranda where it breaks into pieces; or where X drives Y’s cattle over a precipice, causing them to be killed, without performing any further act in respect of the cattle. In these instances X also entertains the intention permanently to deprive the owner of his property, but it would seem clear that he does not commit theft. There are, in fact, certain cases in which the courts (correctly, it is submitted) refused to convict X of theft despite the fact that he did in fact have the intention permanently to deprive the owner of his property.55 The conclusion reached by the courts in these cases is completely reconcilable with the requirement that X must have the intention to appropriate the property. (e) No intention to derive a benefit required Roman and Roman-Dutch law attempted to distinguish theft from acts not amounting to theft by requiring that X should have had an intention of deriving a benefit from his dealing with the property. This requirement is ex- pressed by the words lucrifaciendi gratia.56 Under the influence of English law the common- law requirement of lucrum was abandoned at an early stage in the development of the crime in South Africa.57 Because the old lucrum requirement no longer forms part of our law, it follows that a gener- ous motive on the part of X, such as a wish to distribute the stolen goods amongst the poor, does not exclude the intention to steal.58 The lucrum or advantage referred to in this old requirement is simply the converse of the disadvantage or prejudice suffered by Y: because an intention to derive a benefit is no longer required in our law, it follows e contrario that no intention to prejudice Y is required. (f) Intention in respect of the property This aspect of the requirement of intention means that X must know that what he is taking or that at which his conduct is directed is a movable corporeal property which is available in commerce and which belongs to somebody else or (in cases of theft in the form of the arrogation of possession) which belongs to himself but in respect of which somebody else has a right of possession which prevails against his (X’s) right of possession. If X believes that his action is directed at a res nullius or a res derelicta, where- as the particular piece of property is in fact not a res nullius or a res derelicta, he lacks the ________________________ 55 Cf the following cases in which it was held that merely killing another’s livestock or merely destroying another’s property is not theft, but injury to property: Maruba 1942 OPD 51; Van der Walt 1946 GWL 42; Kama 1949 1 PH H83 (O); Kula 1955 1 PH H66 (O); Dlomo 1957 2 PH H184 (E); Blum 1960 2 SA 497 (E) (In this case X seized his neighbour, Y’s, dogs who were trespassing on his property and causing damage. Shortly thereafter the dogs jumped from Y’s truck and X omitted to search for them. The dogs disappeared. The court held that X had not committed theft by allowing the dogs to disappear. In this case X did have the intention permanently to deprive Y of his dogs. The only explanation for X’s acquittal must be that the court tacitly assumed that, apart from an intention permanently to deprive the owner, X also had to have an intention to appropriate.) Kinqa 1962 2 SA 401 (E); Vilakazi 1967 2 PH H280 (N). In cases such as Lessing 1907 EDC 220 and Hendricks 1938 CPD 456, X was found not guilty of theft de- spite the fact that he clearly had an intention to deprive the owner of his property permanently. In these cases X simply threw Y’s article away because he was angry with Y, but without having had any intention to appropriate the article. These cases are completely reconcilable with the requirement that X should have the intention to appropriate the property. 56 D 47 2 1 3. See also D 47 2 55 1; Damhouder 110 3; Moorman 3 2 2; Voet 47 2 1; Huber HR 6 5 pr; Van der Linden 2 6 2. 57 Laforte 1922 CPD 487 489–493; Kinsella 1961 3 SA 519 (C) 526; Engelbrecht 1966 1 SA 210 (C) 211– 212; Dreyer 1967 4 SA 614 (E) 619–620. The clearest rejection of the requirement is in Kinsella supra. 58 Kinsella supra 526. 432 SNYMAN’S CRIMINAL LAW intention to steal and cannot be convicted of theft.59 If X believes that the property he is taking belongs not to another, but to himself, he likewise lacks the intention to steal.60 ( f ) Intention in respect of unlawfulness The requirement that the intention must also relate to the unlawfulness requirement means that X must know that Y has not, or would not have, consented to the removal of the property.61 The intention to steal is also lacking where, alt- hough he knows that Y has not or would not have consented, X thinks that he has a right to take the property. These cases are usually referred to as “claim of right” cases. X is here mis- taken about the rules of private law.62 11 Removal of a thing (a) General Thus far the four general requirements which apply to all forms of theft have been considered. Next, the particular forms of theft are considered in more detail. The first, and most obvious, form of theft is the removal of a thing. Here, X removes property belonging to Y which is in Y’s or somebody else’s possession from Y’s or the other person’s possession and appropriates it. It is unnecessary to discuss the property requirement, the unlawfulness requirement and the intention requirement as they apply to this particular form of theft, since the principles relating to these three requirements set out above apply without any qualifi- cation to this form of the crime. Only the requirement of the act requires further elucidation. As in all forms of theft the act here also consists of an appropriation of the property, but unlike embezzlement, the appropriation must here be accompanied by a removal of the property from somebody else’s possession. It is necessary, briefly, to discuss the removal requirement. (b) Border between attempted and completed act of appropriation Whether or not X re- moved a thing from another person’s control is a factual question. What is of importance is not so much the touching, handling or other physical act in respect of the property; neither is the distance it has been removed from where it had originally been necessarily the most important consideration. The decisive criterion is whether X succeeded in gaining control over the prop- erty. X gains control over a thing which had not previously been in his own possession or con- trol only if he excluded Y from his control over the thing. Since the thief and the owner have conflicting claims to the property, they cannot both simultaneously exercise control over it; the precise moment at which the owner loses control and the thief gains it is a question of fact. If X takes Y’s thing and carries it away but is apprehended shortly thereafter, before he can succeed in conveying the thing to the precise locality he had in mind, the question arises whether X should be convicted of completed or attempted theft. The test to distinguish between completed and attempted theft is the same as the test to distinguish between a completed and an uncompleted act of appropriation: the question is always whether, at the time X was appre- hended with the property, Y had already lost control of the property and X had gained control of it in Y’s place. The answer to this question depends upon the particular circumstances of every case, such as the nature of the property, the way in which a person normally exercises control over such type of property, and the distance between the places where the property was taken and where X was caught with it. The mere fact that at the time he was caught, X had ________________________ 59 Rantsane 1973 4 SA 380 (O) (X removed a mattress cover from a dustbin under the impression that the owner had thrown it away); Randen 1981 2 SA 324 (ZA) 325H; Cele 1993 2 SACR 52 (N) 55a–b. X’s knowledge may also exist in the form of dolus eventualis. The opposite opinion expressed in Aitken 1988 4 SA 394 (C) 401 is, with respect, incorrect and was justifiably criticised – see Oosthuizen 1990 TSAR 681. 60 Ndhlela 1956 2 SA 4 (N); Riekert 1977 3 SA 181 (T) 183. 61 Sibiya 1955 4 SA 247 (A) 257; Herholdt 1957 3 SA 236 (A) 257; Heller 1971 2 SA 29 (A) 46; Harper 1981 2 SA 638 (D) 669H–670A, 671F. For more cases in which X was found not guilty because he was unaware that he was acting unlawfully, see Thebe 1981 1 SA 504 (B) (X thought that he had the right to take and eat the carcase); Speedy 1985 2 SA 782 (A) (X thought that he was entitled to catch his neigh- bour’s goats as a “fine” for trespassing). 62 De Ruiter 1957 3 SA 361 (A); Latham 1980 1 SA 723 (ZRA).  CRIMES RELATING TO APPROPRIATION OF PROPERTY 433 already assumed control of the property, does not necessarily mean that he had already com- mitted a completed act of appropriation; the test to determine whether there was a completed act of appropriation is not an assumption of control, but the exercising of control in Y’s place – something which is possible only if Y had lost control over the property in X’s favour.63 (c) Theft from a self-service shop It is sometimes difficult to determine exactly when Y’s control ceases and X’s commences. This problem is illustrated by the contradictory decisions arising from cases where, in self-service shops, people remove articles from shelves and conceal them in their clothing with the intention of stealing them but are apprehended by shop assistants before they pass through check-out points. In some cases64 it has been held that this constitutes completed theft, and in others65 that only attempted theft has been committed. The test to be applied in cases of this nature is the same as the general test to determine whether there was an act of appropriation: one should enquire whether, at the time he was apprehend- ed, X’s conduct had already reached a stage where he exercised effective control over the article. This stage would have been reached only if the owner had lost control over the article. The latest trend in our case law is to convict X of completed theft if, in a self-service shop, he concealed articles in his clothing and was apprehended before he could pass through the check-out point (assuming that he had the intention to steal).66 The reason for convicting X of completed theft seems to be the following: although the owners of self-service shops usually take steps to ensure that clients do not surreptitiously remove articles without paying for them, it is practically impossible to keep an eye on all clients at all times. If somebody, intending to steal, has concealed an article in or under his clothing in a self-service shop and is apprehend- ed before he can pass through the check-out point, his apprehension is to a certain extent the result of chance: the security officer who apprehended him might, for example, have been performing his duties in another part of the shop, in which case the client would have succeed- ed in escaping with the article without paying. For this reason it cannot be said that, in practi- cal terms, the shop-owner exercised full and effective control over everything in the shop.67 Furthermore, there is merit in the argument that the moment X concealed the article in his clothing, it ceased to be visible to the shop-owner and that exactly for this reason the shop- owner, from that moment, ceased to exercise control over the article. Viewed in this light, the decisions in which X was convicted of completed theft cannot be faulted.68 It is submitted, however, that if X is apprehended in a shop or business where the security measures are so tight that it is practically impossible for him to remove articles without being caught, he commits only attempted theft, because in such circumstances the owner retains control over ________________________ 63 Kumalo 1952 2 SA 389 (T); Koopman 1958 3 SA 68 (G). Tau 1996 2 SACR 97 (T) 102. For cases in which the handling of the property had reached the stage where X had already gained control of the prop- erty in place of Y (and has therefore been convicted of completed theft), see Mohale 1955 3 SA 563 (O) 564, 565; Tarusika 1959 R and N 51. 64 Bertinotti 1961 1 PH H79 (F); Xinwa 1970 2 PH H171 (NC); Uirab 1970 2 PH H172 (SWA); M 1982 1 SA 309 (O); Dlamini 1984 3 SA 196 (N). 65 Khumalo 1975 4 SA 345 (N); Mquabuzana 1976 1 SA 212 (E). 66 M supra; Dlamini supra; Chaba 2019 3 All SA 103 (FB) par 54; Van Oosten 1985 SACC 149 ff. On drawing an inference that X, who was apprehended before reaching the check-out point, intended to steal the article found concealed in his clothing, see Lujaba 1987 1 SA 226 (A). 67 Tau 1996 2 SACR 97 (T) 102g–h. 68 The judgment in Mekula 2012 2 SACR 521 (ECG), however is incompatible with the above approach. In this case X hid a bottle of whisky in a self-service shop under his clothing, but was apprehended by a se- curity guard before passing the till. The court held that, though he assumed control over the bottle, the owner of the shop was not excluded from his property and therefore X could not be convicted of complet- ed theft but only of attempted theft. It is submitted that this decision is wrong, for the reasons set out above relating to the theft from a self-service shop. 434 SNYMAN’S CRIMINAL LAW everything on the premises at all times even though X may have placed an article in his trouser pocket temporarily.69 12 Embezzlement X commits theft in the form of embezzlement (sometimes also called “theft by conversion”) if he appropriates another’s (Y’s) property which is already in his (X’s) possession. The property, unlawfulness and intention requirements in this form of theft need not be discussed, since the principles relating to these requirements set out above apply with- out qualification to this form of theft. Only the requirement of an act of appropriation needs further explanation. The possessor commits theft as soon as he commits an act of appropriation in respect of the property with the necessary intention to appropriate. Since in cases of embezzlement X already has possession of the property, the act of appropriation in these cases does not consist of both a positive and a negative component as explained above, but only of a positive component, that is, the actual exercising of the rights of an owner over the property. In principle it is immateri- al whether X came into possession of the property because it was entrusted to him or whether it came into his possession by chance, as where somebody else’s animal walked onto his land. The following are examples of acts of appropriation by a person already in possession of the property: X consumes the property, as where he eats another’s food or burns another’s fire- wood; or X sells the article,70 or donates it to somebody, or exchanges it for something else, or uses it to pay his debts. Certain acts, such as branding cattle or the pledging of an article to somebody, do not necessarily amount to acts of appropriation, but are normally regarded as strong indications of the commission of such an act. If, at the time of pledging the article X has no intention of paying his debt, thereby regaining possession of the article, it is easy to deduce that he appropriated it.71 If, however, he intends paying the debt and believes that he will be in a financial position to do so, it cannot be concluded that he appropriated the article, because his act then amounts to the mere temporary use of somebody else’s thing – conduct which does not constitute theft. If X has come into possession of another’s article in an innocent way and thereafter finds out that it is in fact a stolen article, he commits theft if, after such discovery, he sells the article or commits some other act of appropriation in respect of it.72 A person who finds property which somebody else has lost and then appropriates it, may also be guilty of theft. This is especially so if the owner or lawful possessor can easily be traced, as where the owner’s name and address appear on the lost property.73 If X buys an article from Y on instalment and in terms of the agreement Y remains the own- er thereof until X has paid the last instalment, it follows that X is not the owner of the article he possesses. If, before the last instalment is paid, X disposes of the property without Y’s consent, he may be convicted of theft.74 In all the above examples of acts of appropriation X performed some positive act in respect of the property. Whether X appropriated property in cases where he merely omitted to act is more problematic. For example, he merely fails to restore the article to the owner on the date agreed on,75 or merely falsely denies that he is in possession of it.76 The mere decision by X ________________________ 69 Tau supra 102i–j. 70 Eg, Attia 1937 TPD 102; Markins Motors (Pty) Ltd 1958 4 SA 686 (N). 71 Viljoen 1939 OPD 52; Van den Berg 1979 3 SA 1027 (NC). 72 Attia supra; Markins Motors (Pty) Ltd supra. 73 Luther 1962 3 SA 506 (A); Cele 1993 2 SACR 52 (N). 74 Van der Westhuizen 1965 1 SA 773 (T); Burstein 1978 4 SA 602 (T) 604; Van Heerden 1984 1 SA 666 (A). 75 As in Motete 1943 OPD 55 – X was found not guilty of theft. 76 As in Kumbe 1962 3 SA 197 (N) – X was found not guilty of theft.  CRIMES RELATING TO APPROPRIATION OF PROPERTY 435 not to restore Y’s article does not constitute an act of appropriation, since mere thoughts or decisions are not punishable.77 On the other hand it is unrealistic to require that, in order to commit theft, the possessor must necessarily first touch or physically handle the article. Much depends upon the circumstances of each case, as well as X’s intention. It is submitted that in certain circumstances it is perfectly possible to construe an act of appropriation from the mere omission to act in a positive way or from the mere failure to supply the correct information to somebody who inquires about the property. If, for example, a shop owner X intentionally fails to hand over to customer Y the change to which Y is entitled, he commits theft. It is therefore submitted that it is perfectly possible to commit theft by means of an omission. 13 Unlawful arrogation of possession (furtum possessionis) In these cases the owner steals his own thing by removing it from the possession of a person who has a right to possess it which legally prevails over the owner’s own right of possession, such as a pledgee or some- body who has a lien over the property to secure payment of a debt.78 In Roberts,79 for example, X took his car to a garage for repairs. The garage had a lien over the car until such time as the account for the repairs had been paid. X removed his car from the garage without permission. He was convicted of theft. In Janoo80 X, the owner of a carton of soft goods, which he had ordered by post, removed the carton from the station without the permission of the railway authorities. He was entitled to receive the goods only against signature of a receipt and a certificate of indemnification. His intention in removing the goods was to claim for their loss from the railways afterwards. He was found guilty of theft. 14 Unlawful temporary use of a thing not theft The situation dealt with here is where X takes Y’s property without his permission with the intention of using it temporarily and thereafter returning it to Y in substantially the same condition. Such conduct was regarded as a form of furtum in Roman and Roman-Dutch law; it was known as furtum usus. This expres- sion means “theft of the use of a thing”, since it is not the thing itself, but only its use which is “stolen”. In cases of furtum usus X does not intend to deprive Y of his property permanently. His intention is to utilise it temporarily. If one applies the English-law criterion of “intention permanently to deprive the owner” (an intention which, as was seen above,81 is included in the intention to appropriate) one is forced to conclude that furtum usus falls outside the ambit of theft. This is precisely what was decided by our courts, which, since the previous century, have followed English law with regard to this aspect of theft. The leading case in this respect is Sibiya,82 in which the Appellate Division held that furtum usus is not a form of theft. After this decision the legislature attempted to fill the gap left in our law by this judgment, and in section 1 of the General Law Amendment Act 50 of 1956, created a new statutory crime. This crime will be discussed under a separate heading below.83 If X uses another’s property temporarily and thereafter abandons it, without caring whether the owner will ever get it back, he runs the risk of being convicted of theft. He commits theft if the inference can be drawn from the evidence that he had foreseen the possibility that Y will ________________________ 77 Groenewald 1941 OPD 194 198–199; Motseremedi 1965 2 SA 220 (O) 221–222. 78 D 47 2 66 pr; Inst 4 1 10, 14; Voet 47 2 4; Matthaeus 47 1 1 8; Vinnius 4 1 10; Thomas 1922 EDL 194; Rudolph 1935 TPD 79; Roberts 1936 1 PH H2 (C); Janoo 1959 3 SA 107 (A). In Nkambula 1980 1 SA 189 (T) 191 it was emphasised that the right of possession must be a “geldige retensiereg of wettige houerskap van die saak”. 79 Supra. 80 Supra. 81 Supra par 10(b). 82 1955 4 SA 247 (A). 83 Infra XVIII B. 436 SNYMAN’S CRIMINAL LAW never get his property back and if he had reconciled himself to this possibility. X will then be held to have had the intention permanently to deprive in the form of dolus eventualis.84 The rule that the unlawful temporary use of a thing is not theft is furthermore subject to the following qualification: if X removes res fungibiles (ie, articles which are consumed by use, but which can be replaced by a similar article, such as a case of tomatoes, a bag of coal or a can of oil) belonging to Y without Y’s consent and uses it, it is no defence for X to allege that he intended to replace the article with a different but similar one.85 Thus, in Shaw86 X removed certain sacks of coal and wood belonging to his employer. He later replaced them with similar sacks of coal and wood. He was nonetheless convicted of theft. 15 Theft of credit, including the unauthorised appropriation of trust funds87 (a) General The fourth form of theft, namely theft of credit, will now be considered. This form of the crime constitutes a particular way in which money can be stolen. No one will deny that money can be stolen, and where X unlawfully takes cash (notes, coins) from Y’s possession and appropriates it to himself there is usually no difficulty in regarding such conduct as theft: X here commits theft by virtue of the general principles applicable to the crime. Notes and coins are, after all, corporeal property, and in this set of facts X is not the owner of the notes or coins. The most obvious meaning of “money” is corporeal notes or coins. However, “money” may also have a less obvious and more abstract meaning, namely “credit”. By “credit” is usually meant a right to claim money from a bank, because the bank is the owner of the money which is in the bank,88 whereas the bank’s client only has a right to claim from the bank. In modern business usage cash is seldom used. Money generally changes “hands” by means of cheques, negotiable instruments, credit or debit entries in books, or registration in the electronic “memory” of a computer. In these cases one can hardly describe the money in issue as tangi- ble, corporeal articles. It would be more correct to describe it as “economic assets”, “an abstract sum of money”, “a unit representing buying power”, or (the word which will be used in the discussion which follows) “credit”. Theft of money in the form of credit, and especially credit entrusted to somebody, was un- known in common law. It is a creation of our courts. One of the most important ways in which this form of theft can be committed is the unauthorised appropriation of trust funds. However, this is not the only way in which credit may be stolen. X can commit theft of credit even if it were not entrusted to him. Most of the discussion which follows will, however, be devoted to the appropriation of trust funds. ________________________ 84 Vilakasi 1999 2 SACR 393 (N) 397–398. In Laforte 1922 CPD 487 X removed Y’s car from his garage without his permission. He went for a drive in the car intending to return it, but on the return journey col- lided with a lamp-post. Without notifying anyone, and regardless of whether or not the car was returned to the owner, X abandoned the vehicle at the scene of the accident. He was found guilty of theft. For similar cases, see Roberts 1932 CPD 87 92; Dorfling 1954 2 SA 125 (E) 126–127; Engelbrecht 1966 1 SA 210 (C) 212E. Contrast, however, W 1994 2 SACR 777 (N). In this case X and Y abandoned a vehicle which they had removed without intention to steal. In acquitting X and Y of theft, the court declared at 780f–g that “to leave a motor vehicle with its number plates and its serial and engine numbers intact cannot, with- out more, constitute the sort of abandonment contemplated in [the] passage from the [judgments in Sibiya and Laforte]”. With respect, the court has completely missed the point that what falls to be assessed is X’s intention at the point of abandonment, and not the objective possibility of the property being reclaimed. 85 Koekemoer 1959 1 PH H31 (O); Rusike 1961 2 PH H254 (R) (both these cases dealt with the theft of petrol); Herholdt 1957 3 SA 236 (A) 257; Berliner 1966 4 SA 535 (W) 537; Heller 1971 2 SA 29 (A) 46 (all the latter cases dealt with the theft of money, which is also a res fungibilis). 86 1960 1 PH H184 (G). 87 See generally Hunt-Milton 605–615; Burchell 705–711; Loubser passim; 1978 De Jure 86 ff. 88 Kotze 1965 1 SA 118 (A) 124H.  CRIMES RELATING TO APPROPRIATION OF PROPERTY 437 (b) Theft of credit which is not entrusted to somebody Before considering the unauthorised appropriation of trust funds, cases of theft of credit not entrusted to a person are considered. Assume that Z opens a cheque account at a bank and that he deposits R500 into the account. The bank then becomes the owner of the R500. Z only acquired a right to claim the money from the bank. If the bank issues a cheque book to Z and Z writes out a cheque of R100 in favour of Y and hands the cheque over to Y, it means that Z instructs the bank to pay Y R100 upon presentation of the cheque to the bank, and to diminish his (Z’s) claim of R500 against the bank by R100. If X intercepts the cheque and without any authorisation deposits the cheque into his own account, and the bank pays the R100 into X’s account, that which is stolen by X is in fact Z’s right to claim R100 from the bank. X nevertheless, according to our law, commits theft of the R100 despite the fact that the R100 is not a corporeal thing (tangible coins or notes), but merely a right to claim from the bank – something which (like all rights) is incorporeal. It is submitted that X also commits theft of credit if he unlawfully comes into possession of Y’s credit card, discovers the secret number (the “PIN” number) that Y has to use in order to draw cash from an automatic teller machine, and then uses Y’s credit card and secret number to draw cash for himself from an automatic teller machine.89 If X uses Y’s credit card, which he has unlawfully obtained, in a shop to buy himself goods, X is usually charged with fraud, because he has made a misrepresentation to the shop-owner that the credit card belongs to him. (c) Theft of credit entrusted to somebody Generally speaking, theft of credit entrusted to X takes place if credit has been entrusted to X to be applied by him for a certain purpose, and con- trary to the conditions in terms of which the funds have been entrusted to him, he then applies the funds for another purpose – mostly for his own benefit. What makes this form of theft unique is that here X commits theft despite the fact that what he steals is neither corporeal property nor property belonging to somebody else. A feature of this form of theft is that it amounts to certain forms of breach of contract qualify- ing as theft. The Appeal Court has expressly admitted that this is a distinctive form of theft.90 This form of theft is so far removed from other forms of the crime that it cannot be accom- modated under the general definition of theft given above, without radically extending the ordinary meaning of the words in the definition. For this reason there is much to be said for the view that here one is not dealing with theft as it originally developed in Roman-Dutch law, but rather with another, separate crime. Nevertheless it is important to bear in mind that in practice somebody who has committed an act falling within the ambit of this form of the crime is charged with theft, and not with a crime under a different name, and that if the prosecution is successful, he will be convicted of theft. (d ) Unauthorised appropriation of cash entrusted to somebody Before discussing theft of credit entrusted to somebody, consideration is firstly given to how the present form of theft can be committed in respect of cash, that is, corporeal coins or notes. Assume that Y gives X an amount of cash with instructions to use it to pay Y’s debt to his (Y’s) creditor. X receives the money, but instead of paying Y’s creditor with it, he spends it on liquor and a holiday for himself. Usually X combines the cash he receives from Y with his own cash, with the result that, in terms of the principles of private law, X becomes the owner of the cash he received. Nevertheless according to our law X commits theft of the money if he ________________________ 89 Botha 1990 SACJ 231 236. 90 Kotze 1965 1 SA 118 (A) 123F; Verwey 1968 4 SA 682 (A) 687; Reynecke 1972 4 SA 366 (T) 384D–F. On this form of theft see also Milne and Erleigh (7) 1951 1 SA 791 (A) 865C; Manuel 1953 4 SA 523 (A) 526; Gathercole 1964 1 SA 21 (A) 25; Heller 1971 2 SA 29 (A) 42; Graham 1975 3 SA 569 (A) 576; Harper 1981 2 SA 638 (D) 666–671; Visagie 1991 1 SA 177 (A) 182–183; Kimmich 1996 2 SACR 200 (C) 210–211. 438 SNYMAN’S CRIMINAL LAW uses it to his own advantage.91 In these types of cases the rule that one cannot steal one’s own property is no bar to a conviction. According to our courts, X receives the money “in trust”, because he was not free to dispose of it as he wished. X had to apply the money for Y’s benefit. Y, according to the courts, has a “special interest or property” in the money.92 X’s conduct is not merely a breach of contract, giving Y the right to institute a civil action for the repayment of the money, but also constitutes a crime. The same principles are applied if Y buys something in a shop and gives the shopkeeper, X, an amount of cash which is more than the price of the item purchased. X now has to give Y change, but then intentionally gives Y less than he should, or fails to give Y any change at all. The money paid by Y to X is regarded as money given to X “in trust”. X is under an obliga- tion to return the correct amount of change to Y. An intentional omission to do so amounts to the theft of the money X has to pay back. In Scoulides93 Schreiner JA explained this principle as follows: “in a case like the present the purchaser hands over the banknotes, not in order to make the seller unconditionally the owner thereof, but only in order to make him the owner if and when the goods and right change are tendered”. There is, in any event, a second reason why in this type of case X commits theft of the change: his conduct amounts to the dishonest accounting of money entrusted to him. (It will be pointed out below94 that the mere dishonest accounting of trust money can in itself constitute theft.) (e) Unauthorised appropriation of credit entrusted to X The type of situation considered above dealt with theft of cash (coins or notes), that is, money in the most obvious sense of the word. Next the question how theft can be committed through the unauthorised appropriation, not of cash, but of credit, will be considered. Assume that Y is a widow whose mental faculties are diminishing fast because of old age, and that X has undertaken to administer Y’s financial affairs. As trustee of Y’s estate, it is X’s duty to receive all funds due to Y and then to deposit them in a banking account on her behalf or to invest them for her at a favourable interest rate. Z makes out a cheque in X’s favour, but the funds which the cheques represent are not given to X in his personal capacity, but in his capacity as Y’s trustee. The funds are due to Y and are to be utilised for Y’s benefit. Z hands over the cheque to X. (The reason the cheque has not been made out in Y’s favour and handed over to her is the fact that Y’s financial affairs are now handled by X.) X receives the cheque, but in violation of his duties as a trustee, he deposits the cheque into his own account in order to extinguish his own private debt. In this set of facts X is, according to the law relating to trusts, himself the owner of the funds (or expressed technically more correctly: it is he who has the claim against the bank) which the cheque represents. Nevertheless, according to our courts, X commits theft by converting the funds to his own private use.95 The recognition of such conduct as theft amounts to a broadening of the traditional princi- ples governing the crime. This is evident from the fact that it is the trustee who is the holder of the account; it is he who has a legal claim against the bank. He is contractually bound to administer a sum of money on behalf of somebody else for a specific purpose, but breaches the terms of the contract by disposing of the money for his own benefit. The complainant usually no longer has any ownership in the money. The trustee breaches the law by failing to fulfil his contractual obligation. This is, in fact, a situation where the breach of contract ________________________ 91 See the authorities referred to in previous footnote. 92 Manuel 1953 4 SA 523 (A) 526H; Scoulides 1956 2 SA 388 (A) 394G–H; Kotze 1965 1 SA 118 (A) 125– 126; Graham 1975 3 SA 569 (A) 577E–F. 93 1956 2 SA 388 (A) 394. 94 Infra par 15(g). 95 Milne and Erleigh(7) 1951 1 SA 791 (A) 865C; Manuel 1953 4 SA 523 (A) 526; Kotze 1965 1 SA 118 (A) 124; Heller 1971 2 SA 29 (A) 42; Graham 1975 3 SA 569 (A) 576; Visagie 1991 1 SA 177 (A) 182– 183.  CRIMES RELATING TO APPROPRIATION OF PROPERTY 439 amounts to theft. What the trustee is stealing is neither a concrete movable corporeal thing (such as notes and coins), nor credit, that is, a legal claim which somebody else has against the bank and which he, the trustee, then disposes of in breach of his obligation. It is, after all, the trustee himself who (according to the law relating to trusts) has the legal claim against the bank. What he in fact steals is an abstract sum of money which he is bound by contract to administer or dispose of on behalf of his client for a specific purpose but which he then dis- poses of for his own benefit, in breach of the obligation.96 Although this extension of the ambit of the crime has been criticised,97 it is now firmly es- tablished that money in the form of credit can be stolen, and people are regularly convicted of such theft. What is important, according to the courts, is to consider the economic effect of X’s conduct, for example, the reduction of Y’s bank credit.98 ( f ) Two possible defences If money or credit is entrusted to X to be applied by him for a certain purpose but he applies it for a different purpose, there are two possible defences on which he can rely to escape being convicted of theft. (i) First defence: the existence of a liquid fund Where X holds money in trust on Y’s be- half, or receives money from Y with instructions that it be used for a specific purpose, and X uses the money for a different purpose, he does not commit theft if, at the time he uses the money, he has at his disposal a liquid fund large enough to enable him to repay, if necessary, the money which is supposed to accrue to Y, but which is, in fact, used for a different pur- pose.99 The reason for this is that “the very essence of a trust is the absence of risk”.100 A liquid fund is a fund from which money can be withdrawn without delay. An agreement with a bank that the bank will allow an overdraft constitutes such a liquid fund.101 (ii) Second defence: money received as part of a debtor-creditor relationship A distinction is drawn between money held in trust for somebody and money held by an agent or debtor by virtue of a debtor-creditor relationship.102 This distinction is of great importance in cases in which somebody receives money from another as an agent. Where X is an agent who holds money for another in trust, the spending of the money by X will amount to theft, unless, as pointed out above, he has a liquid fund of at least equivalent proportions from which to draw.103 However, where Y lends money to X, and X receives the money as part of a debtor-creditor relationship, whereupon he spends the money for a purpose which differs from the purpose for which the money was originally given to him, he does not commit theft. In such a case it is assumed that the person who handed over the money, or on whose behalf it is held, relies upon X’s creditworthiness and personal responsibility. If X ________________________ 96 Loubser 1978 De Jure 86 89; Hunt-Milton 607–610. 97 De Wet and Swanepoel 325 ff; Coetzee 1970 THRHR 369. 98 Solomon 1953 4 SA 518 (A) 522G; Sibiya 1955 4 SA 247 (A) 261; Reynecke supra 386C–D; Scoulides 1956 2 SA 388 (A) 394G; Kimmich 1996 2 SACR 200 (C) 210a–b, h–i. In Kotze 1965 1 SA 118 (A) the Appeal Court held that if X receives cheques in respect of funds due to Y, and should deposit the funds which the cheques represent in favour of Y, but in fact deposits the cheques in settlement of his own pri- vate debts, he commits theft. 99 Wessels 1933 TPD 313; Visagie 1991 1 SA 177 (A) 182. 100 Incorporated Law Society v Visse 1958 4 SA 115 (T) 118. 101 Wessels supra 315. In Visagie supra the Appeal Court doubted obiter whether the existence of a liquid fund will always offer a trustee a defence. According to the court, this will depend on the circumstances of each case. However, the court admitted that the existence of such a fund will always be strong evidence that X lacked the intention to appropriate the funds entrusted to him. 102 The distinction is derived from s 183 of the old Transkeian Penal Code of 1886, which was described in Golding (1896) 13 SC 210 215 as “fairly stating the law of the Colony proper in regard to thefts by agents”. This section has regularly been followed by the courts. See, eg, Reynecke 1972 4 SA 366 (T) 384. On the origin and appli- cation of the section, see Loubser 195 ff; 1978 De Jure 86 93. 103 Weiss 1934 AD 41; Solomon 1953 4 SA 518 (A) 522–523; Manuel 1953 4 SA 523 (A) 526; Le Roux 1959 1 SA 808 (T); Gathercole 1964 1 SA 21 (A) 25; Harper 1981 2 SA 638 (D) 666–671. 440 SNYMAN’S CRIMINAL LAW spends the money he does not commit theft, provided he duly enters the debt on the account which he must render to the creditor.104 Whether the money is held in trust or under a debtor-creditor relationship is a question of fact, which in practice may be very difficult to answer. The answer to this question depends upon the intention of the parties when they enter the agreement. However, the parties seldom consciously consider this difference when entering an agreement. One can agree with the statement in Hunt-Milton105 that “the basic question which has to be asked is: did the person entitled (Y) visualize and expressly or impliedly authorize that X should use the money without retaining an equivalent liquid fund? If the answer is yes, it is debtor-creditor money; if no, it is ‘trust’ money”. Some examples from our case law of money considered by the courts to be held in trust are the following: money handed over to an attorney;106 money handed over to an auctioneer;107 money handed over to a liquidator under the Farmers’ Assistance Act 48 of 1935;108 and money handed over to an agent with instructions to be used for a very specific purpose.109 Some examples of money held to be money held in terms of a debtor-creditor relationship are the following: money received by a bank from a client;110 money received by a broker;111 and money collected by a Value-Added Tax vendor on behalf of the South African Revenue Service.112 (g) The dishonest accounting of trust funds, or failure to account for such funds If money is entrusted to X and he intentionally omits to account for what he does with the money, or intentionally gives a false account of what he did with the money, he commits theft, provided the circumstances are such that the inference may be drawn that he appropriated the money for himself.113 In such cases the fact that he had a liquid fund at his disposal does not offer him a defence. (h) Appropriation of overpayments Assume that, at the end of a month, employer Y erro- neously pays his employee, X, two cheques instead of one, resulting in X receiving twice the salary he is entitled to. If X, aware of the mistake, deposits the double salary in his banking account and spends the money which he knows is not due to him, he commits theft according to our case law. It cannot be suggested that Y has merely trusted X’s creditworthiness and has merely created a creditor-debtor relationship, for the simple reason that such a relationship is not created by mistake. It must be accepted that an implied relationship of trust has been created and that X has received the money under a certain condition, namely that it should be returned to Y. In any event, even if one accepts that the overpayment has resulted in a debtor- creditor relationship, X still commits theft since he omits to account properly for the money he has received.114 (i) The unlawful “temporary” use of money Assume I have to give Z R100 urgently. I dis- cover that I do not have my wallet with me at my office. However, I know that Y, who works ________________________ 104 Golding (1896) 13 SC 210 215. Satisky 1915 CPD 574 579; Graham 1975 3 SA 569 (A) 576C–D. 105 Hunt-Milton 608. 106 Fraser 1928 AD 484. 107 Le Roux 1959 1 SA 808 (T). 108 Reynecke 1972 4 SA 366 (T). 109 Fouché 1958 3 SA 767 (T). 110 Kearney 1964 2 SA 495 (A) 502–503. 111 McPherson 1972 2 SA 348 (E). 112 Parker 2015 2 SACR 109 (SCA) par 9. 113 S 183 of the old Transkeian Penal Code, followed in Golding supra. 114 In Graham 1975 3 SA 569 (A) X was the managing director of a company which received a cheque for more than R37 000 from Y. The amount was not owing. X knew this, but nonetheless allowed the cheque to be paid into the company’s bank account, and used the money to settle the company’s debts. The company was finan- cially unsound and its bank account was overdrawn. He was convicted of theft.  CRIMES RELATING TO APPROPRIATION OF PROPERTY 441 in the office next to me, has a R100 note in the top drawer of his desk. I go to Y’s office, ascertain that he is not there, open the drawer of his desk and remove the R100 without his consent. I then give the R100 to Z. Assume that I have always had the intention to give Y another R100 note, and that in fact I do so. Would I have committed the crime of theft of the R100? The courts’ answer to this question would be “yes”, for the following reason: Money, ac- cording to the courts, is a res fungibilis, that is, a thing that is consumed by use although it may be replaced by another similar type of thing. In the discussion above115 of the unlawful temporary use of a thing it was stated that X commits theft (as opposed to the mere non- criminal temporary use of a thing) if he removes a res fungibilis (such as a can of oil or a bag of coal) belonging to Y without Y’s consent with the intention of later replacing it with anoth- er similar thing. The same rule applies if X removes money belonging to Y without his con- sent with the intention of later replacing it with other money of the same value.116 This rule applied by the court may, however, be criticised. The res fungibilis exception to the rule that the temporary use of another’s property is not theft leads to inequitable results. Apart from this, the courts’ view that the unlawful temporary use of money constitutes theft is irreconcilable with the courts’ own view that in the case of theft of money, what is appropriat- ed should not be viewed as corporeal notes or coins but as “an abstract sum of money” or “a unit representing buying power” (“credit”). If X at all times intends to pay Y back an equal amount of money, he does not have the intention of permanently depriving Y of the money’s value.117 16 Theft a continuing crime; no accessories after the fact The rules relating to partici- pation and accessories after the fact in respect of theft are highly unsatisfactory. The reason for this is, first, the disregard, especially in the earlier cases, of the concept of appropriation and in particular of the intention to appropriate and, secondly, the incorporation into our law of the rule that theft is a continuing crime (delictum continuum). The rule that theft is a continuing crime means that the theft continues to be committed as long as the stolen property remains in the possession of the thief or somebody who has partic- ipated in the theft or somebody who acts on behalf of such a person.118 This rule was unknown in our common law119 and was introduced into our law in 1876 by Lord De Villiers in Philan- der Jacobs.120 Since then this rule has been regularly applied in our case law.121 The rule has two important effects. The first is procedural in nature: if X steals the property in an area falling outside the territorial jurisdiction of the court he is nonetheless guilty of theft and may be tried and convicted if he is found in possession of the stolen property within the court’s territory;122 since the crime continues as long as he possesses the property; his posses- sion of the property while inside the court’s territory means that he commits the offence inside the territory over which the court has jurisdiction and that the court can therefore try him for theft committed inside its jurisdiction. ________________________ 115 Supra par 14. 116 Milne and Erleigh (7) 1951 1 SA 791 (A) 865; Herholdt 1957 3 SA 236 (A) 257; Visagie 1991 1 SA 177 (A) 183. 117 See the justifiable criticism of the rule applied by the courts by Loubser 1978 De Jure 86 91. 118 Attia 1937 TPD 102 106; Von Elling 1945 AD 234 246. 119 See the discussion of this rule in De Wet and Swanepoel 349, in which the application of the rule in our law is strongly criticised. 120 1876 Buch 171. 121 Mlooi 1925 AD 131 138; Harmse 1944 AD 295 300; Von Elling 1945 AD 234 245–246; Bhardu 1945 AD 813 825; Sexaba 1957 4 SA 280 (E) 281; Brand 1960 3 SA 637 (A) 640–641; Kruger 1989 1 SA 785 (A) 793D–E; Cassiem 2001 1 SACR 489 (SCA) 492–493. 122 Makhutla 1968 2 SA 768 (O); Kruger supra 793; Dayizana 1989 1 SA 919 (E). 442 SNYMAN’S CRIMINAL LAW The second effect of the rule that theft is a continuing crime is that, generally speaking, our law draws no distinction between perpetrators and accessories after the fact. As pointed out above,123 an accessory after the fact is somebody who helps the perpetrator at a stage when the original crime has already been completed. Since theft is a continuing crime, the person who after the commission of the theft assists the thief (who is still in possession of the property) to conceal the property does not qualify as an accessory after the fact, because his assistance is rendered at a time when the original crime (theft) is still uncompleted. The person rendering the assistance is therefore guilty of theft, and not merely of being an accessory after the fact.124 Another reason why a person can, as a rule, not be convicted of being an accessory after the fact to theft is the fact that somebody who, after the commission of the original theft, assists the thief to conceal the property also has the intention permanently to deprive the owner, and, especially in the earlier cases, the courts were so blinded by the requirement of intention permanently to deprive the owner that they did not require any intention to appropriate the property. If one assumes that an intention to appropriate is required for theft, it is indeed possible to differentiate between, on the one hand, the person who intentionally appropriates the property, and on the other, the person who, without entertaining any intention to appropri- ate, thereafter assists the previous person by merely temporarily looking after the property or concealing it. One of the very few instances where, in terms of the rules applied by the courts, it would, by way of exception, indeed be possible to be guilty of being an accessory after the fact to theft, is where X assists Z, the original thief, at a stage after Z had already gotten rid of the stolen property, by concealing Z himself from the police or by assisting him to escape. Since Z is no longer in possession of the stolen property at the time that X renders his assistance, he (Z) is not busy committing the “continuous” crime of theft, and therefore X’s assistance can, accord- ing to general principles, be sufficient to render him guilty of being an accessory after the fact to theft. If X agrees with Y, the actual thief, before the theft is committed that after the property is taken he will receive it (perhaps at a price) and in fact does, then X is in any event according to general principles not merely an accessory after the fact but in fact a co-perpetrator.125 In this case X’s act did not commence only after Z had obtained the property but already before Z had committed his act. If, on the other hand, X has innocently come into possession of property but discovers afterwards that it is stolen and then commits an act of appropriation in respect of the property, he commits an independent act of theft.126 17 No difference between perpetrators and accomplices in theft Just as the courts gen- erally do not differentiate between perpetrators and accessories after the fact when it comes to theft, they do not differentiate between perpetrators and accomplices in this crime. The reason for this unfortunate equation of the two groups of participants can once again be traced to the courts’ disregard of the importance of the requirements of an act of appropriation and an inten- tion to appropriate. If one ignores the appropriation concept model for this crime, applying (as the courts did) only the classical and English-law model for the crime, it is not possible to dis- tinguish between perpetrators and accomplices. ________________________ 123 Supra VII D. 124 Brett and Levy 1915 TPD 53 (X sold wagons for another in full knowledge that they had been stolen); Mlooi supra 138, 142; Harmse supra 300; Von Elling supra (at the request of Y, who had stolen the vehicle, X drove it from one garage to another with the intention of concealing it from the owner: he was convicted of theft as a perpetrator); Bhardu supra; Naryan 1998 2 SACR 345 (W) 356. 125 Mlooi supra 138; Ex parte Minister of Justice: in re R v Maserow 1942 AD 164 170; Von Elling supra 240– 241. 126 Attia 1937 TPD 102 105–106; Bazi 1943 EDL 222 226; Kumbe 1962 3 SA 197 (N) 199.  CRIMES RELATING TO APPROPRIATION OF PROPERTY 443 Assume that X carries Y’s box containing bottles of wine out of Y’s house and later drinks all the wine himself. As a favour to his friend X, Z only gives him advice as to how to get hold of the wine (or merely stands guard while X removes the wine) but never receives the wine himself. If one adopts the appropriation concept model, it is easy to draw a distinction in this set of facts between a perpetrator and an accomplice: X is a perpetrator because he appropriated the wine, but Z is only an accomplice because he neither committed an act of appropriation nor had an intention to appropriate, although he intentionally gave X advice or assisted him and in so doing furthered the commission of the crime. The mere rendering of assistance to or facili- tation of another’s act of appropriation does not in itself constitute an act of appropriation. “Appropriate” means “to make something your own”. If, as in the above hypothetical set of facts, Z only assists X to “make the wine X’s”, it cannot be said that Z had also appropriated the wine – that is, “made it his own”. If, on the other hand, one does not apply the appropria- tion concept model but requires only a contrectatio committed with the intention permanently to deprive the owner of the thing, the two categories of participants (perpetrators and accom- plices) merge: Z must then be regarded as a perpetrator too, since his conduct and intention, like that of X, also complies with these requirements. Even if one assumes that theft is a continuous crime, it ought still to be possible, by applying the appropriation concept model, to distinguish between a perpetrator (ie, a person who (continuously) appropriates the thing) and an accomplice (ie, somebody who only assists without himself also appropriating the thing).127 The unjustified equation of perpetrator, accomplice and accessory after the fact described above must be regretted. In other crimes a distinction is drawn between these three groups of persons, and there is no reason why theft should be an exception. The confusion in our case law on this issue can be traced directly to the courts’ adoption of the wrong model for the definition of the crime. B REMOVAL OF PROPERTY FOR USE 1 Background It was pointed out above128 that the temporary use of another’s property without consent ( furtum usus) was treated as a form of theft in both Roman and Roman-Dutch law (although some of the Roman-Dutch writers were of the opinion that such use by some- body who was already in possession of the property should no longer be punishable). In Sibiya129 the Appeal Court finally decided that such conduct was not a form of theft and was not punishable. In an obvious attempt to make such conduct punishable section 1(1) of the General Law Amendment Act 50 of 1956 was enacted. 2 Definition Section 1(1) of the General Law Amendment Act 50 of 1956 reads as follows: “Any person who, without a bona fide claim of right and without the consent of the owner or the person having control thereof, removes any property from the control of the owner or such person with intent to use it for his own purposes without the consent of the owner or any other person competent to give such consent, whether or not he intends throughout to return the property to the owner or person from whose control he removes it, shall, unless it is proved that such person, at the time of the removal, had reasonable grounds for believing that the owner or such other person would have consented to such use if he had known about it, be guilty of an offence and the court convicting him may impose upon him any penalty which may lawfully be imposed for theft.” ________________________ 127 De Wet and Swanepoel 357. 128 Supra XVIII A 14. There are conflicting views as to whether unauthorised borrowing constitutes theft in customary law – Myburgh 90. Botha 46 and Prinsloo 217 report that this conduct will be regarded as theft. 129 1955 4 SA 247 (A). 444 SNYMAN’S CRIMINAL LAW 3 Elements of offence The elements of the offence are the following: (a) the removal of (b) property (c) from control (d ) unlawfully, that is, without consent (e) with intent to use it. 4 Criticism of formulation The subsection is very badly formulated.130 According to