R v Sibiya

• Jurisdiction: South Africa
• Judge: Schreiner ACJ, Van Den Heever JA, Hoexter JA, Fagan JA and Steyn JA
• Judgment Date: 14 September 1955
• Citation: 1955 (4) SA 247 (A)
• Hearing Date: 29 August 1955
• Court: Appellate Division

D Schreiner, A.C.J.:

The appellant and one Mdunge were convicted of the theft of a motor car by a regional magistrate's court and were each sentenced to twelve months' imprisonment. They appealed to the Natal E Provincial Division which dismissed their appeals but granted the appellant leave to appeal to this Court; Mdunge made no request for leave to appeal.

Mdunge and the appellant were employed at a garage in Durban and on a night in August, 1954, they took the complainant's car, which was being F parked in the garage, and drove it for their own amusement to various places in the neighbourhood. While Mdunge was driving the car he capsized it in a donga at the side of the road. When the police arrived Mdunge and the appellant were still on the scene. Mdunge was arrested the same night, the appellant a day or two later.

At the trial the case for the defence was that they had always intended G to return the car to the garage. It is not easy to ascertain from the magistrate's judgment what precisely was his approach to this defence, but BROOME, J.P., who gave the judgment in the Provincial Division, assumed in the accuseds' favour that they had intended to return the car, a view which he found to accord with the general probabilities. H Counsel for the Crown advanced an argument to the contrary in this Court, based on the failure to do anything towards returning the car, but the accident was followed by the arrival of the police and the case was not like those in which the car is abandoned, whether after an accident or not. It seems to me, therefore, to be clear that BROOME, J.P.'s assumption was rightly made and that the appeal must be dealt with on the basis that Mdunge and the appellant throughout intended

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to take the car back when they had used it for their night's entertainment.

One of the appellant's grounds of appeal was that,

'The conviction was bad as furtum usus is not an indictable offence. The accused, in the circumstances, did not commit the offence of theft.'

A In overruling this ground BROOME, J.P., referred to a number of cases, starting with Rex v Fortuin, 1 B.A.C. 290. Relying in particular on Rex v Mtaung, 1948 (4) SA 120 (O), he reached the conclusion that a person who takes something which belongs to another and from which the owner derives benefits,

'if he takes with the intention of using those benefits to the owner's deprivation he is a thief, whether he intends his own use or the owner's B deprivation to be for a short time or for a long time or permanent.'

In Rex v von Elling, 1945 AD 234, the judgments of WATERMEYER, C.J., and TINDALL, J.A., were concurred in by the rest of the Court. At p. 236 the learned CHIEF JUSTICE said,

'The ordinarily accepted definition of theft which I take from Gardiner and Lansdown on Criminal Law is as follows: 'Theft is committed when a C person fraudulently and without claim of right made in good faith takes or converts to his use anything capable of being stolen 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''.

(It should be noted that the reporter has erroneously closed the inverted commas at the end of the first paragraph on p. 237 of the 1945 AD Reports. From the end of the definition on p. 236 the language is D that of WATERMEYER, C.J., and not of the authors of Gardiner and Lansdown.) After pointing out that a fraudulent taking or dealing with another's property cannot deprive him of his legal right of ownership, though it can deprive him of the benefits of ownership such as use and possession, the learned CHIEF JUSTICE went on to say,

'If the thief's adverse possession or control is accompanied by an E intention to put an end to the enjoyment by the true owner of the benefits of his ownership, then the thief is, so long as he remains in adverse possession, continuously committing the crime of theft.'

On p. 239 the learned CHIEF JUSTICE, dealing with the position of one who assists the principal thief, said,

'and if his act be accompanied by the necessary intention to deprive the true owner of the benefits of his ownership, then the assistant is guilty of theft.'

F Again, at p. 247 TINDALL, J.A., referring to the position of von Elling, as an assistant of the principal thief, said,

'And the latter must be taken to have appreciated that the natural effect of his conduct was to further the purpose of depriving the owner of his rights to the car.'

G I have not cited these passages from von Elling's case as being decisive of the present question for this Court was there dealing with the liability for theft of one who had assisted the principal thief after the theft had been committed, and was not directly concerned with the question whether theft requires an intention to effect a total deprivation of the owner's enjoyment of his property, or whether an intention to deprive him temporarily of its use is sufficient. But the H extracts are nevertheless important in the decision of this case.

In the first place, the contrast between the definition of Gardiner and Lansdown and the view expressed in the quotation from the judgment of BROOME, J.P., brings out what the issue is that has to be decided. The reason why WATERMEYER, C.J., substituted for the word 'ownership', used by Gardiner and Lansdown, 'the benefits of his ownership'

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clearly was because a thief cannot by his theft take the owner's title from him. And it is, I think, no less clear that by 'the benefits of his ownership' the learned CHIEF JUSTICE meant 'the whole benefit of his ownership'; the plural 'benefits' was not used so as to make it sufficient for theft that the taker should intend to deprive the owner of portions of the benefit of ownership, such as the use of the thing A for a time. What the definition of Gardiner and Lansdown means in the present connection and what it was understood by this Court in von Elling's case to mean, is that theft is committed when a person takes a thing, and not merely the use of a thing, with the intention of depriving the owner of the thing i.e. of the whole benefit of the thing.

In the second place, the passages quoted from von Elling's case show B that this Court treated it as the established or accepted view that the intention to effect a total deprivation of the owner's enjoyment of his property is an essential part of the mental element required for theft. What the ingredients of so important a crime as theft are should, if possible, not be in doubt, and if there is an ordinarily accepted C enumeration of those ingredients one should presumably hesitate long before disturbing it. I shall return to this aspect later.

The earliest reported case in our Courts that deals with the present problem is R v Rish and Others, 1 R.31, decided in 1862, where the accused, who were soldiers, took a boat from its moorings in Table Bay D in order to desert from their service. Apparently they hoped to reach a cargo vessel, when the boat would presumably have been made available to the owner again, but it was in fact destroyed by the force of the sea. The jury's finding was treated as amounting to one that there had been no more than a taking for a temporary purpose, and not with the intention of depriving the owner of the possibility of regaining E possession of it. It was because there was no intention to deprive the owner of the whole benefit of his ownership that the Court (HODGES, C.J., and BELL, J.) held that theft had not been committed. The fact that the motive of the accused was to escape from their service, though it might have been an element in drawing the inference as to their intention, was otherwise irrelevant. Provided that they intended that F the owner should get his boat back it could have made no difference to the result if, instead of wanting to escape from service, they were seeking only such enjoyment as may be derived from boating on Table Bay.

Seven years later, in R v Dier, 3 E.D.C. 436, a similar result was reached by SMITH, J., in a case where the accused had been convicted of G stealing two boats, which he had used for the purpose of crossing the Kowie River. After some reference to the Roman, Roman-Dutch and English Law, the learned Judge said, at p. 438,

'I have come to the conclusion that both under the Colonial Law and under the English Law there must be a taking with an intent to deprive the owner wholly of his property in order to constitute theft. In this case the accused took the boats merely for the purpose of making a temporary use of them, and without any intention whatever of permanently H depriving their owners of them; or, in common parlance, he never intended to steal them. The act was wrongful, and a trespass for which the owner may maintain a civil action to recover damages for the injury sustained; but neither in law nor in common sense can it be called a crime . . . I do not intend by anything that I have said to lay down that - if a man takes away anything belonging to another and applies it to his own purposes, and then abandons it with a reckless disregard as to whether it is destroyed or not, and it is destroyed - such an act is not criminal. On the

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contrary, I am of opinion that a man so acting can clearly be found guilty of theft.' The words 'and it is destroyed' are, I think, superfluous.

In 1883 the case of R v Fortuin, supra, was decided by a Court consisting of DE VILLIERS, C.J., BARRY, J.P., and BUCHANAN, J.P., and A DWYER and SMITH, JJ. The accused was travelling with a wagon and a span of oxen. One ox fell sick and the accused substituted for it an ox which he took from the veld. In the town to which he was travelling the ox was identified by its owner. The accused was charged in the magistrate's court with theft of the ox and acquitted. He was at once charged...