Rex v Von Elling

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Feetham JA, Greenberg JA and Davis AJA
• Judgment Date: 01 December 1944
• Citation: 1945 AD 234
• Hearing Date: 05 October 1944
• Court: Appellate Division

Watermeyer, C.J.:

The facts of this case are fully set out in the judgment of my brother TINDALL and it is unnecessary for me to repeat them.

I agree that the conviction of the accused von Elling, as an accessory after the fact, should be set aside for the reasons given in the case of Rex v Harmse (1944 AD 295), and that a verdict of guilty of theft be substituted.

The ordinarily accepted definition of the crime of theft which I take from Gardiner & Lansdown on Criminal Law is as follows: "Theft is committed when a 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. But a fraudulent taking of a thing from its owner, or any other fraudulent dealing with it, cannot, as, a general rule, deprive the owner of his legal right of ownership in the thing. It can, however, deprive him of the benefits of his ownership (such as use and possession), and so long as the thief remains in adverse possession or control of the stolen thing, he is continuously guilty of a fraudulosa contrectatio

Watermeyer, C.J.

which deprives the owner of those benefits. If the thief's adverse possession or control is accompanied by an 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. It follows that anyone who, at any stage, knowingly assists the thief in the taking of the thing or in the retention of control adverse to the owner, is contributing to the wrong which is being done to the owner and is therefore himself guilty of theft."

How does the legal position of such an assistant differ from that of an accessory after the fact? In order to answer that question it becomes necessary to examine the meaning of the words "accessory after the fact".

This term has been introduced into our criminal law from English law and has received statutory recognition. The English law relating to accessories after the fact is involved and has been altered and amended from time to time by legislation. (See Stephen's History of the Criminal Law, vol. 2, p. 234.) If some of the old English textbooks on Criminal Law, such as Hawkins, Pleas of the Crown (Book 2, Ch. 29, para. 25 et seq.), Hale, Pleas of the Crown (Part 1, Ch. 56), and Blackstone's Commentaries (4.3.3), are, consulted it will be, seen that at common law an accessory after the fact was one who, after a felony had been completed, received, comforted, or assisted the felon in order that he might escape from justice. The essence of the offence was, in Blackstone's words, "the hindrance of public justice by assisting the felon to escape the vengeance of the law" after the felony had been completed.

Difficulties existed in some cases in deciding whether assistance rendered to a felon did sordid not make the assistant an accessory, after the fact. For example, were receivers or purchasers of stolen property accessories? They assisted the felon in his crime by enabling him to dispose of the stolen goods, but was that enough? It appears from what is said by Hale (Part 1, Ch. 56), that at one time. it was considered that the purpose of the receipt determined whether or not the receiver was an accessory; if his intention was to assist the thief to escape, his receipt of the goods with that intention constituted him an accessory; if his intention was merely to benefit himself then he was not an accessory. Subsequent legislation, however, provided that the

Watermeyer, C.J.

receipt of stolen goods with knowledge that they, were stolen should be a substantive felony, and that the receiver of stolen goods could also be indicted as an accessory after the fact to the crime of theft. (See Stephen, History of the Criminal Law, vol. 2, p. 238.) Such legislation had the effect, therefore, of expanding the meaning of the original common law idea of an accessory after the fact. The legal position in England relative to this subject at the end of last century is fully dealt with by Russell in his book on Crimes. (See Book 1. Ch. 3, para. 4; 6th ed., p. 176 et seq.). Stephen, Digest of the Criminal Law, para. 45, 4th ed., published in 1887, defines an accessory after the fact as follows:-

"Everyone is an accessory after the fact to felony who knowing a felony to have been committed by another receives, comforts or assists him in order to enable him to escape from punishment or rescues him from an arrest for the felony, or having him in custody for the felony intentionally and voluntarily suffers him to escape or opposes his apprehension."

The first part of this definition has been taken over in sec. 81 of the Native Territories Penal Code (Act 24 of 1886, Cape), where an accessory after the fact to an offence is defined as "one who receives, comforts or assists anyone who has been a party to such offence in order to enable him to escape, knowing him to have been a party thereto".

It will be noticed that this deflation reproduces the old English common law idea of an accessory after the fact and I have not found any other. South African statutory definition of the term. Accessories after the fact are, however, referred to in several legislative enactments. (See per INNES, C.J. in Rex v Mlooi (1925 AD at 135); Gardiner and Lansdown, 4th ed., vol. 1, p. 113; Act 31 of 1917, sec. 230 (2) and compare sec. 139 (2)

As already indicated, the verdict "guilty as an accessory after the fact" in this case must be set aside for the reasons given in Harmse's case and therefore it is unnecessary for me to decide whether the term "accessory after the fact", when used in our criminal law, bears the meaning given to it in the Native Territories Penal Code or a wider meaning corresponding to the extended meaning in later. English criminal law, or yet another meaning which it may have acquired by analogy from Roman-Dutch sources. (See Rex v Mlooi (1925 AD 131 Per INNES, C.J. at p. 135) and

Watermeyer, C.J.

Rex v Reynolds (1933 W.L.D. 1), the latter of which seems to go very far.)

I cannot, however, leave the subject without mentioning a dictum in the case of Rex v Maserow (1942 AD 164) which was quoted to us and relied on by counsel for the accused. In the course of the judgment in that case I suggested that one who receive stolen goods from a thief knowing them to be stolen might sometimes be a mere accessory after the fact and not guilty of theft. That statement was based upon some remarks made by KOTZE, J.A., in the case of Rex v Mlooi, but further consideration inclines me to the view that the dictum in Maserow's case may be misleading. The words "accessory after the fact" were, there clearly used in a wide sense to include any one who assisted the thief after the taking, but it is also clear that any person who receives stolen property from a thief knowing it to be stolen, and handles it, is necessarily guilty of fraudulosa contrectatio, and even if his receipt of the property was primarily for the purpose of assisting the thief to escape from justice, it is difficult to conceive of the existence of a state of affairs which would lead to the conclusion that he had no intention to deprive the true owner of the benefits of his ownership.

The case therefore of a receiver of stolen property from a thief who can be regarded in law as a mere accessory after the fact, and not as a thief, if it exists at all, is a rare possibility, and not, as the dictum in Maserow's case seems to suggest, one of ordinary occurrence.

It will be seen from what I have said that if assistance is given to a thief during the period which elapses after he has taken the stolen property into his possession and before he has dispossessed himself of it, difficulties may arise in deciding whether such helper is himself guilty of theft or whether he is at most an accessory after the fact to the crime of theft, whatever meaning that term may bear. Such assistance, given after the taking if it involves handling or dealing with the stolen property, may amount to a fraudulosa contrectatio by the assistant. If there be such a fraudulosa contrectatio by the assistant or if he assists the principal thief in his fraudulosa contrectatio, 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. If, on the other hand, his intention is merely to assist the thief to escape and

Watermeyer, C.J.

he does nothing which can be construed as a fraudulosa contrectatio, then he is at most guilty as an accessory after the fact. Obviously it may sometimes be difficult to draw a clear line of distinction between the two crimes.

In the present case, it appears that the assistance which von Elling gave to van Rensburg was given for the purpose of concealing the stolen car both from the true owner and from the police. His intention way have been is complex one, but one of the results which he must have contemplated when he moved the car from Prinsloo's premises to Dommisse's...