Comment: The broadening of the scope of statutory furtum usus

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Citation: (2001) 14 SACJ 217
• Author: CR Snyman
• Pages: 217-224
• Date: 24 May 2019

The broadening of the scope of

statutory

furtum usus

C R SNYMAN

University of South Africa

1 Content of the statutory crime

It seems as if South African criminal law has always experienced problems of

some kind in deciding whether somebody commits a crime if he uses

another's property temporarily with intent to restore it to its owner after use.

Before 1955, when

R v Sibiya

1955 (4) SA 247 (A) was decided by the

Appellate Division, the different provincial divisions of the supreme court

failed to reach unanimity on the question whether

furtum usus,

that is 'theft

of the use of somebody else's property', was criminal. (Thus whereas the

Orange Free State Division held in

R v Mtaung

1948 (4) SA 120 (0) that

unauthorised borrowing constituted theft, other divisions refused to regard

such conduct as punishable — see eg

R v Olivier

1921 TPD 120;

R v Laforte

1922 OPD 487.) The

bellum iuridicum

was finally settled by the Appellate

Division in the

Sibiya

case, when it held that such conduct was not criminal.

In an obvious attempt to make such conduct punishable s 1(1) of the

General Law Amendment Act 50 of 1956 was enacted. The subsection 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.'

2 Criticism of the formulation of the crime

Unfortunately the formulation of the statutory crime is very clumsy, as many

commentators have indicated. (See JC de Wet Opmerkings oor twee artikel

van die Algemene Regswysiginswet, No 50 van 1956' (1956) 19

THRHR

250;

217

(2001) 14 SACJ 217

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