UNIT 8 - OFFENCES AGAINST PROPERTY

Learning Objectives
To understand the elements for the offences of:
• Theft;
• Robbery;
• aggravated robbery; and
• burglary/housebreaking.
Understand the offences of:
• handling stolen property;
• receiving stolen property; and
• being in possession of stolen property.
Theft
Basic requirement of the offence is that there should be a
thing, the thing whatever its nature or value must be capable
of being stolen.
(see S264 PC Cap 87 list things which are capable of being
stolen).
Definition of theft
S.265(i) - A person who fraudulently & without claim of right takes anything
capable of being stolen or fraudulently converts to the use of any person other
than the general or special owner thereof anything capable of being stolen, is
said to steal that thing’
S265(2) A person who takes anything…..capable of being stolen is deemed to
do so fraudulently if it does it with….
(a) An intent to permanently deprive the general or special owner of thing of it
S.265(5) a person is not be deemed to take a thing unless if he moves it or
causes it to move
Theft
Fraudulently means dishonest, the taking must be intentional,
without mistake & with knowledge that the thing being taken
belongs to another person
Summary of Provisions S.265 identifies five elements of theft
o There must be something capable of being stolen
o The thing must belong to another person
o The A must take & move the thing
o The A must intend to permanently deprive another person of the thing
o A must act fraudulently (dishonestly)
Theft
Theft is a felony

Person convicted is liable to an imprisonment term which range between five

- fifteen years – (S 272, 275, 275A, 276, 8)

Sentence will depend on nature of thing stolen

Actus reus of Theft – Taking & moving a thing that belongs to another
Actus reus of Theft
Taking & moving
o Ordinary meaning applies to the act of taking & moving
o Implied that there is an absence of consent or knowledge of the owner of
the thing taken & moved
Must be a thing capable of being stolen
o S.264 is seeks to define what property is (thing capable of being stolen)
o So basically property could include animals,
 Money
 Property
 Intangible property ( non physical property) – cheque, copyright, trademark &
shares
Actus reus of Theft cont’d
Belonging to another:
o Phrase not contained under s264/5
o However is said to mean the same thing as ‘which is property of any person’
o Property capable being stolen must belong to someone other that the person
being accused of having stolen
o The thief does not necessary have to steal the thing from the owner it could be
from the person in charge or in possession of the thing
Mens rea of Theft
Elements of Mens rea of Theft:-
1. Fraudulent intent
2. Intention to permanently deprivation
Absence of definition of Fraudulent in PC
Natural meaning applied is dishonesty
s.265(2) – when the A intents to;
o Permanently deprive
o Use thing as pledge or security
o Part with it
o Deal with it in a manner that it is not returned to its original condition
o In case of money intent to use it
Intention to permanently deprivation
Must be an Intention to permanently deprive

o S265(2) (a) ‘intent permanently deprive’ not defined

o Need to be an intention to permanently deprive
o No need for proof of actual permanent deprivation; if this were the case,
there would be no charge of theft in a situation where the goods are
recovered & returned to the owner
o It is still theft if there is an intention to permanently deprive but there is no
actual deprivation.
o Intent to deprive – hidden intention which accompanies the AR
Right of Claim
A claim of right is a genuine belief held by a person that they have a bona fide
claim of right to certain money or property.
The defence extends to any person who takes property of another if they
believe they have a bona fide claim of right to the money or property in
question.
The claim must be genuinely, that is, honestly held — whether it was well
founded in fact or law or not.
While the belief does not have to be reasonable, a colourable pretence is
insufficient.
The belief must be one of a legal entitlement to the property and not simply a
moral entitlement.
Case Law

Read Chapter XXVI of the PC

Read the following cases on theft
o Mwachilama v. The People (1972) ZR 287 Crt of Appeal
o Muzyamba v. The People (1975) ZR 83 SC of Zambia
o Chombe V The People (1972) ZR. 36 – stock theft
o Winford Kaleo V The People (1978) Z.R. 250 (S.C.)
o Ezara Moyo V The People (1981) Z.R. 173 (S.C.)
Robbery & Extortion
Robbery is a combination of theft with violence; the violence
could be threat or use of force
To establish the offence of Robbery, the following must be proven
before the court:
1. Theft must be established
2. Application , or threat of the use of violence/force
 Take note that there is a distinction between the offence of robbery
(see s.292) and that of aggravated robbery (see s. 294) – MAKE SURE
TO READ BOTH SECTIONS
The law on Robbery & Extortion - S. 292
Under s.292 the several elements of robbery are mentioned:
o There must be theft
o Theft must be accompanied with use or threat to use actual violence which
violence must occur at or immediately after the time of stealing
o Use of or actual threat to use force must be directed to any person or
property to obtain or retain property stolen or to prevent or overcome
resistance of it being stolen or retained
The law on Robbery & Extortion
Accused (A) convicted under s.292 is liable to fourteen years imprisonment

The MR for robbery includes mental element required in the offence of theft

Violence must be applied intentionally or recklessly

The Law on Aggravated Robbery
S294 PC – entitled Aggravated Robbery criminalises robbery which is
aggravated by the use of ‘any offensive weapon or instrument’ or
whilst acting with others.
A conviction of the A can be secured under S294 if-
o Elements of theft must be established
o Element of robbery (s292) must be proved beyond reasonable doubt
A must be armed with any offensive weapon or instrument or must
be acting with others.
The minimum sentence for the offence of aggravated robbery is 15
years whereas the maximum sentence is life imprisonment.
 The Law on Aggravated Robbery
Where offensive weapons or instrument used is a firearm or grievous harm
is caused – penalty of aggravated robbery is a mandatory death sentence
(s.294(2).
But there are defences available to A. A would have to prove by evidence
to the satisfaction of the court that:
(i) A was not armed with a firearm
(ii) A was not aware that any of the other persons involved in committing the offence
was armed
(iii) That A disassociated himself/herself from the offence immediately on becoming
aware
(iv) A neither anticipated nor could reasonable have anticipated that grievous harm
might be inflicted in the course of the offence
 The Law on Aggravated Robbery Cont’d
In the case of John Timothy & Feston Mwamba v. The People (1977) ZR 394
– stole property and used violence against the occupants, the Supreme
Court held as follows:
o to establish an offence under s294(2) the prosecution must prove that
the weapon used was a firearm within the meaning of the firearms’ Act
 Ensure to read the following cases:
o Jordan Nkoloma V The People (1978) Z.R. 278
o Mugala v. The People (1975) ZR 282 (SC)
o Tambwe & another v The People (1987) Z.R. 15 (S.C.)
Further Case Law
 Look at the following cases:
o Chongo and Another v People [1999] ZMSC 16:
o extenuating circumstances are only applicable in murder cases. To invoke the
principles of extenuating circumstances in sentencing an accused in an armed
robbery offence other than murder is not only wrong in principle but also
wrong in law.
o Haonga & Others v. The People (1976) ZR 200
o Kanyanga v The People [2012] ZMSC 11
Burglary & House breaking

Offence which relates to criminal violation of the sacredness of the home

or other buildings such as factories, shops or places of worship.
PC differentiates between house breaking & burglary
House breaking – Committed during the day
Burglary – committed during the night
 The Law on Burglary & House breaking
S300 stipulates circumstances which amount to breaking and entering
The Section makes it clear that entry does not necessary mean that the A
should enter the building physically
S300(2) – a person is deemed to have entered the building once any part of
his body or instrument used by A is within the building
Therefore Burglary & House breaking can be committed by
(i) by breaking or entering the building or part of the building with intent to commit a
felony Or
(ii) having entered a building with intent to commit a felony or having committed a
felony therein, breaks out i.e. rape, theft etc (s.306, 301).
 Elements of offences of Burglary & House
breaking
Actus Reus
o Entry (s300, 301,304).
o knowingly or recklessly
o Building or part of the building
Mens rea
o With intent to commit a felony at the time of entry/ or whilst in the building
Penalty of Burglary & House breaking
Housebreaking (committed during the day) penalty is seven years
imprisonment (s301)
Burglary ( committed during the night) D if convicted is liable to ten years
imprisonment
Offences that fall under s.303 – seven years imprisonment (building &
committing a felony)
S.304 – 5 years (building with intent to commit a felony) treated in same
way as offence of theft.
Case Law
Read s. 300 – 306 of the PC
Look at the following cases:
o John Mumba V The People (1971) Z.R. 125 (H.C.)
o Fatyela V The People (1966) Z.R. 135 (H.C.)
o Muwowo V The People (1969) Z.R. 67 (H.C.)
 The Law on Receiving/Handling stolen property/ unlawfully obtained

S.318 – receiving stolen property

o The provision makes it an offence to receive or retain stolen property
o Knowledge is an essential ingredient of the offence– must know or have
reasonable cause to believe that the goods were stolen goods
S318 (2) deals with receiving property unlawfully obtained by
means of false pretence or fraudulent means
AR of Receiving/Handling stolen property/
unlawfully obtained
AR identified on the basis of s.318
1. Receiving & retaining goods
o receiving implies that the A must have acquired control or possession over the
stolen goods from another
o Possession needs to be established hence ;
o it must be shown that that the goods are either in the A’s immediate custody
(control)
o or located at a place which the A has control over
o There must be intention by the A to possess the goods
AR of Receiving/Handling stolen property/
unlawfully obtained
2. Retaining – keep possession of or continuing to have goods
The goods must be stolen
o Stolen goods would be any property that comes into the control or
possession of the A as a consequence of robbery or burglary (stolen or
illegally obtained)
o Meaning of stolen extends to include situation were goods are obtained by
false pretence (s.300)
MR of offence of Receiving/Handling stolen
property/ unlawfully obtained

Knowing or having reasonable cause to believe the goods were

stolen or;
 S. 318 requires that there is this knowledge at the time or
receiving or retaining;
Fraudulently or dishonestly obtained goods
Punishment
Penalty ranges for receiving and retaining stolen goods ranges from
three – seven years

Circumstances in which the goods/property was stolen are also

taken into account.
Case Law
 S 318 of the PC
 Read the following cases:
o George Nswana v the people (1989) ZR 174 (SC) –brings out the distinction
between receiving and retaining stolen property
o Chizema v. The people (1972) ZR 7 HC
o Stephen Manda v. The People (1980) ZR 116 HC
o Attorney- General’s Reference (No. 1 of 1974) [1994] QB 744 CA
Being found in Possession of
stolen/unlawfully obtained Property
S319 deals with situation where the A is found in possession of
property suspected to have been stolen or unlawfully obtained.
The Court grants A an opportunity to give an explanation as to how
the property came to be in their possession.
Evidence that the accused was in possession of recently stolen
property may be evidence that the accused was either the thief or
the receiver of the property – this is the doctrine of recent
possession.
Recent Possession
Where an accused person is in possession of property which has been recently
stolen and he/she either gives no explanation as to how he/she came to have
it, or gives an explanation which could not reasonably be true, then the court
is entitled, but not obliged, to conclude either that he/she stole it or that
he/she received it knowing it to be stolen.
The whole of the explanation given by the accused and all the circumstances
should be considered. These include:
o the period which has elapsed since the property was stolen;
o the nature and value of the property;
o whether the property is memorable or a common item;
o whether the circumstances in which it was obtained are likely to be remembered;
o and what is known of the circumstances in which [the accused] obtained it.
Recent Possession Cont’d
Thus, before the court can draw the inference against the accused that
he/she]stole the property or that he/she received it knowing it to be
stolen, it must be satisfied of each of the following beyond reasonable
doubt —
1. the property, the subject of the charge, was in the possession of [the
accused];
2. the property was stolen;
3. it was stolen recently;
4. no explanation which the court is prepared to accept as reasonably
possible has been given by the accused or appears from all the
circumstances, these calling for some explanation;
5. having considered the whole of the explanation given and all the
circumstances, the conclusion should be reached that the accused stole
the property or received it knowing it to be stolen, no other conclusion
being reasonably available.
 Case Law Cont’d
Ensure that you read the following cases for an understanding
of the Doctrine of Recent Possession and how the courts have
applied it.
o Elias Kunda v The People (1980) Z.R. 100 (S.C.)
o Chabala v The People (1976) Z.R. 14 (S.C.)
o Lazarous Kantukomwe v. The People (1981) ZR 125 SC
Job well done! You have completed studying the unit. Now attempt the
work on the portal with the title Activity on Unit 8.
After attempting the questions, verify your answers using these notes, case
law and the Penal code.