When is removal of someones property a crime?

By Danie Terblans

REMOVAL OF SOMEBODY ELSE’S PROPERTY

I noticed a few posts on facebook where persons are in a club or restaurant busy enjoying themselves. Then one ore other creature will approach, take your glass and swallows the contents. When you utters your disgust for this type of behaviour and demanding a replacement, the perpetrator will usually reply in an challenging manner “And what are you going to do about that, he? What, what…”. The advice given to people victim of this, is that you cannot do much. It is not a crime or a petty crime (de minimis non curat lex), that the police will not take the case, that it is better to forget and move on, and so on. But is it really that simple? Many people have lost their lives over the years in brawls which was the result of such “misunderstandings”, which mostly occurs where friend Bacchus is in the vicinity.

To answer this, I will sketch two scenario’s:

A: You are staying in a school hostel. Your roommate, takes without your knowledge your blazer to attend a function. Whilst at the function, the blazer was placed on a table. By accident, somebody knocked over a candle and the blazer was damaged. Your roommate then put the blazer back in the wardrobe and do not inform you. Later you discover the damaged blazer. Your enquiries of who was responsible yield no success. You go to the police station to lay a charge. There you are being informed that no criminal case can be laid. It is a civil matter, because the blazer was not intentionally damaged. Correct?

B: The next scenario deals with a lawnmower. You keep your lawnmower in a mutual garage at a townhouse complex. One day you arrive earlier at home only to discover that someone else at the complex is busy using your lawnmower without your consent for his own purposes. You and the person is in an argument. You cannot settle your differences and go to the police station. There you explain your problem. The member informs you that you cannot lay a charge of theft as the person did not have the intention of permanently removing your control over your lawnmower. It is a civil case and you are advised to approach an attorney. Correct?

The answer is: “No, it is not correct.”

What is correct, is that the mentioned conduct does not constitute theft. A person who “borrows” another person’s property (with the intention of returning it to the rightful owner) and who return it after using without the consent of the owner, cannot be convicted of theft (common law). The borrower did not have the intention of permanently excluding the owner from exercising control over his property.

This had lead to an intolerable situation in the legal system of the country. To address this, Parliament adopted the General Law Amendment Act (50/1956). The aim of the act is: To declare the unlawful appropriation of the use of another’s property an offence, to amend the law relating to the formalities of certain contracts…

Section 1 of the General Law Amendment Act, 1956 (Act No. 50 of 1956) reads as follow: “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.”

As usually the case with statutory offences, there are aspects to take in consideration when applying the law:

(1) There are similarities with this offence and the offence of Using a Vehicle without Owner’s consent (National Road Traffic Act, (93 of 1996) section 66(2).

(2) The act is will only be applicable if the property is removed from the control from the lawful owner. The mere use of property without removing it will not constitute an offence. The offence is completed as soon as the property is removed. It is not necessary that the person who removes it, must in fact use it. Only the removal of the property needs to be proofed.

(3) The temporary removal of property is sufficient to constitute the offence.

(4) Consent from the owner (or person lawfully in charge of the property) to remove or use the property will constitute a ground of justification. The reasonable belief that the owner have given consent or will give consent will also be sufficient..

(5) No offence is committed if the owner of the property gives consent for the removal of the property but prohibits the use thereof and the property is then used against his will. This type of conduct does not fall under the scope of the act. The same apply if the owner give consent to the use of the property, but not for it’s removal and the property is actually removed. (with the intention of returning it of course).

(6) The application of this act must not be confused with other incidents which will constitute theft. The act mentions “removal” and “use”. To remove somebody’s property and consume it, will constitute theft. The owner of the property is permanently deprived of his ownership. A classic example is where I took the cold drink of somebody else and drink it.

(7) This act is also not applicable where a person removes property, consumes it with the intention of later replace it with a similar type of property. Such conduct constitutes theft. An example of such conduct is the following: I take a bottle of brandy without the consent of the owner, consumes it. My intention is to replace it before the owner notice it. I commit the crime of theft. The question is why theft a I have the intention of replacing it. The answer lies with the fact that I will not return the VERY same bottle I took, but a different one. The same will apply for the unauthorised “borrowing” of petrol, food, cash etc without the consent of the owner.

(8) The same investigation for this offence is to be done as the case with normal “theft” dockets. The property in question, can (not MUST) be seized in terms of chapter 2 of the Criminal Procedure Act (51/1977). Section 20 to 25. It is strongly advised that suspects for this type of cases, only be arrested by virtue of an arrest warrant, unless the circumstances compels an arrest without an arrest warrant, Section 40 of the Criminal Procedure Act. I will also advise that these type of dockets preferably be sent to the Senior Public Prosecutor for a decision before an arrest is made. The border between criminal and civil in these type of cases is sometimes very difficult to distinguish. Circumstances however will dictate the appropriate route and course of action to be taken.

(9) Please take note of section 31 of the Criminal Procedure Act (51/1977) which deals with the disposal of an article where no criminal proceedings are instituted or where it is not required for criminal proceedings.

Section 31 (1)(a): If no criminal proceedings are instituted in connection with any article referred to in section 30 (c) or if it appears that such article is not required at the trial for purposes of evidence or for purposes of an order of court, the article shall be returned to the person from whom it was seized, if such person may lawfully possess such article, or, if such person may not lawfully possess such article, to the person who may lawfully possess it.

Section 31 (1) (b): If no person may lawfully possess such article or if the police official charged with the investigation reasonably does not know of any person who may lawfully possess such article, the article shall be forfeited to the State.

Section 31 (2): The person who may lawfully possess the article in question shall be notified by registered post at his last-known address that he may take possession of the article and if such person fails to take delivery of the article within thirty days from the date of such notification, the article shall be forfeited to the State.”