Criminal Law Textbook chapter 8-Sections 1.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 Necessary requirements such as unlawfulness and intention are not mentioned, or are clothed in unacceptable, outdated and vague expressions such as “fraudulently” and “without claim of right made in good faith”.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).