CRIMINAL LAW: SPECIFIC CRIMES

Module Code: LCC202

Lecturer Details: Nombuso.Mashele@ump.ac.za
Office: Archive Building, Office 212
Consultation: TBC
Name : Ms Nombuso Mashele
LLB (UJ), LLM in Labour Law (UJ)
LLM in Human Rights Law (Ongoing – UNISA)

LECTURE 9
CRIMES AGAINST PROPERTY

1. THEFT
SET OF FACTS

A uses B (his girlfriend’s car) regularly. They have a fight and he moves out. He drives off in her car. She lays a charge
of theft of motor vehicle.

Question:
Did he commit theft?

Define theft
Theft is a common law crime.
Theft is an act of appropriation in respect of property that may be stolen; which takes place unlawfully (without
consent) and intentionally (including an intention to appropriate) to deprive the owner permanently of the
property.
CRIMES AGAINST PROPERTY
Elements of a crime in general: Elements of theft:

Legality Common law

Conduct Appropriation of property (define appropriation)

Which type of property? Traditionally moveable corporeal
property but see Ndebele case.
Unlawfulness Against the common law to appropriate someone else’s property
without permission and no ground of justification
a. Property belongs to and is in the possession of another;
b. Property which belongs to another but is in the perpetrators’ own
possession;
c. Property belongs to the perpetrator but is in another possession
and such other person has a right to possess it which legally
prevails against the perpetrators own right of possession;
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.
CRIMES AGAINST PROPERTY

Criminal The accused must be able to distinguish between

Capacity right and wrong and act in accordance with this
distinction

Fault Intent to appropriate the owner permanently of the

property
 CRIMES AGAINST THE PERSON
Give the different forms of theft that Snyman identifies
i. Removal of property e.g. A is in a shop and hides objects belonging to B under his clothes
ii. Embezzlement A commits this form of theft if he appropriates property which happens already to be in A’s
possession or control e.g has B’s car and sells it.
iii. Arrogation of possession: A commits this form of theft it he takes his own property from the possession of B, who
has a right to its possession which prevails against the owner by virtue of a lien or pledge.
iv. Theft of credit including the unlawful appropriation of trust funds.
CRIMES AGAINST PROPERTY
Which types of property may be stolen?

i. Moveable property, e.g. can’t steal a farm

ii. Traditionally corporeal/tangible property, e.g. must be tangible: cannot steal for example an idea;
But in S v Ndebele regarding theft of electricity the court INCLUDED IN PROPERTY ALSO INTANGIBLE BUT COULD PUT
MONETARY VALUE ON THE AMOUNT OF ELECTRICITY STOLEN
• by including it in the definition of property it was not an extension of theft as was the case with S v Masiya case.

•An accused can steal money (physical rands/coins), but what about theft of credit (credit means money which is in the bank)? E.g. A gets hold
of B’s credit card and B’ PIN number and withdraws money from the ATM. (also fraud). The bank is the owner of the money but B has the right
to claim his money.
o The courts include in the common law theft of corporeal property also ‘credit’, theft of trust money (Trust money: it is where money is
handed from one person to another not as a payment for goods purchased or a loan but to be used by the other for the benefit or
advantage of the person handing over the money, e.g. A bought a house and gives the deposit to the attorney who must pay this to
the bank once the house has been registered in A’s name)

iii. The property must be available in commerce or capable of forming part of thereof, e.g. air cannot be sold or water in a public stream or
householders who throw garbage in their garbage bins.

iv. The property must belong to someone else or someone else has the right to it.
CRIMES AGAINST PROPERTY

Question: If the accused does not comply with the last element, intention to permanently deprive the owner
of property, but only wanted to use the property temporarily without the consent of the owner, did the
accused commit the common law crime, theft?

 Not guilty of the common law crime, theft.

 Study S v Sibiya
In the Sibiya case 2 mechanics took a car on a ‘joydrive’ and made an accident. They were charged for theft
and convicted in the court of first instance. They appealed against their conviction stating that they never
had the intention to deprive the owner permanently of his property. Their appeal was successful.
 The Sibiya case was in 1955.
 As a result of the Sibiya case, the legislator implemented Act 50 of 1956.
 The Sibiya case left a void which is covered by the s 1(1) of the General Law Amendment Act 50 of 1956
 A statutory crime in terms of section 1(1) of the General Law Amendment Act 50 of 1956: makes it a crime
where the accused unlawfully without the consent of the owner removes property from the control of the
owner to temporarily use the property.
CRIMES AGAINST PROPERTY
2. Embezzlement
What is embezzlement?
X commits embezzlement, also known as “theft by conversion” if he unlawfully and intentionally
appropriates another’s (Y’s) property which is already in his (X’s) possession.

3. Receiving stolen property

Is receiving stolen property a crime?
• Take note of section 36 and 37 of the General Law Amendment Act 62 of 1955.
• Section 36: a statutory crime where a person is found in the possession of property in regard to which there is a
reasonable suspicion that they have been stolen and is unable to give a satisfactory account of such possession
• Section 37: a statutory crime where A , otherwise than at a public sale, acquires or receives into his or her
possession from any other person stolen goods, without having reasonable cause for believing at the time of
such acquisition or receipt that such goods are the property of the person from whom he or she receives them e.g.
pawnshop
 CRIMES AGAINST PROPERTY
4. Robbery

Definition:
Robbery is the theft of property through the use of violence or threats of violence (assault), a causal link between the violence and the taking of
the property unlawfulness and intention.
Lay person’s definition: theft by means of assault (violence/threat of violence)

Question: Is violence an essential element of robbery?

 Study Ex parte Minister: in re Gesa; R v De Jongh (Snyman Casebook)

 Study Hoctor ‘Expanding the crime of robbery” 2012 SACJ 361
o In the Gesa and De Jongh case the courts of first instance found that a threat of violence does not constitute robbery. The 2 cases went on
appeal and the court of appeal overturned the court of first instance judgements.
 No necessity for direct violence, but a threat (direct or implied) also sufficient.
 The purpose of the violence or threat of violence must be to induce the victim to submit to the taking of the property.
 Threat of violence has not been defined in case law.
 The threat must be one of physical violence. If A threatens to tell B’s wife that he committed adultery, then not robbery but extortion (blackmail).
o Snyman suggests the threat should be similar to a threat that would lead to a charge of assault.
 CRIMES AGAINST PROPERTY
5. Fraud
Define:
It is a common law crime and consists of making of misrepresentation; which causes prejudice or potential
prejudice; unlawfully and intentionally.

6. Forgery
• Forgery is the unlawfully and intentionally making of a false document to the actual or potential prejudice of
another.
• It is a common law crime.
• ‘Document’ is interpreted widely, e.g. false testimonial, false drivers’ license.
• Intent to defraud.
CRIMES AGAINST PROPERTY
7. Uttering

• Uttering is the unlawful and intentional passing off of a false document to the prejudice or potential prejudice of another.
• It is a common law crime.
• E.g. when A presents his/her false driver’s license to the traffic officer.

• S v Janssen
• The accused had a gambling addiction and to fund this, she defrauded the company with an excess of a million rand. The
consequence was that the company had to close. She was convicted and 8 years imprisonment was imposed. She
appealed against the conviction arguing that since fraud was a non-violent crime, prison sentence she should not be
imposed. The court disagreed.
 No legislation: fraud, forgery and uttering are common law crimes.
 Identity theft a big problem; in South Africa the accused would be charged for fraud (and/or theft depending on the facts).
CRIMES AGAINST PROPERTY
SELF STUDY

1.Removal of property
2.Failure to give account of
3.False pretenses

Cases for Crimes Against Property – Self Study

 R v Makonie 1942 OPD 164

 R v Sibiya 1955 (4) 247 (A)
 S v Van der Berg 1991 (1) SACR 104 (T)
 S vTau 1996 2 SACR 97 (T)
 S v Markins Motors (Pty) Ltd 1958 4 SA 686 (N)
 S v Nkambula 1980 (1) SA 189 (T)
 Ex parte Minister vanJustice: in re S v Seekoei 1984 (4) SA 690 (A)
 S v Boesak 2000 (3) SA 381 (SCA)
 S v Cassiem 2001 (1) SACR 489 (SCA)
CRIMES RELATING TO DAMAGE TO
PROPERTY
1. Malicious Damage/Injury to Property
Define malicious damage to property.

•It a common law crime and consists of the following elements: where A unlawfully and intentionally damages
•property
 The property may belong to another or his/her own property to claim the value of the ‘damaged’ property from the
insurer.
 The property may be corporeal (movable or immovable) but must be tangible.
 ‘Damages’ are difficult to define in abstract terms. It can be where an animal was wounded or where a statue was
painted; although the original structure of the property was not changed.
 Snyman argues that the use of the term ‘malicious’ creates the wrong impression, namely that A must act with evil
motive. However, the motive is irrelevant.
 This crime may overlap with theft or arson.
CRIMES RELATING TO DAMAGE TO
PROPERTY
2. Arson
Define arson

• It is where A unlawfully and intentionally sets fire to an immovable property which may belong to another or
his own immovable insured property to claim the value from the insurer.
• It is a common law crime
CRIMES RELATING TO DAMAGE TO
PROPERTY
3. Housebreaking with intent to commit a crime
Define housebreaking with the intent to commit a crime
•It is where A unlawfully and intentionally breaks into and enters a building or structure with the intention to commit
a crime in it.
 Housebreaking must be accompanied by the intention to commit some other crime, e.g. housebreaking
with the intent to commit theft, or commit murder or commit rape.
 Housebreaking to commit a crime is a common law crime.
 The structure or building must be one used for human habitation.
 ‘Breaking in’ means that there was an obstruction which is part of the structure that A had to remove; there does
not have to be any damage, e.g. A pushed a blind aside; but walking through an open door does not constitute
‘breaking in’.
o Pushing aside a curtain does not constitute ‘breaking in’, because it is not regarded an obstruction.
o Using a child to climb through a small window and opening the door, will constitute ‘breaking in’ – the child
was a tool to gain access.
 One cannot break into one’s own home.
CRIMES RELATING TO DAMAGE TO
PROPERTY
See cases!

R v Bowden 1957 (3) SA 148(T)

R v Mavros 1921 AD 19
S v Temmers 1994 (1) SACR 357(C)