1. The concept of theft in criminal law

South African law, as usual, still maintains a somewhat closer link with the tradition of the ius commune. On the one hand, theft is still a common-law crime. It is based on the Roman-Dutch notion of furtum, which is, in turn, essentially still that of Paul.

D. 47, 2, 1, 3.^[4884] Over the last 150 years, however, the old, pre-1968 English law^[4885] has exercised considerable influence^[4886] ^{^[4887] ^[4888] ^[4889] ^[4890] ^[4891] and eroded some of the civilian foundations.²⁰⁴ Among the "tattered remnants"²⁰⁵ is, most prominently, the factual element of contrectatio. It vaguely insinuates some kind of "dealing" with the property; but what precisely it entails is entirely unclear—as unclear, in fact, as it was even in Roman law.²⁰⁶ Is a mere touching of the thing sufficient?²⁰⁷ Or does contrectatio imply an assumption of control on the part of the thief?²⁰⁸ Does the victim of the theft have to be deprived of his control?²⁰⁴ Must there be an actual physical handling or does an act which is "tantamount to a physical dealing with the property by the thief or at his instance and in his presence"^[4892] ^{^[4893] suffice for conviction under a charge of theft?^[4894] Occasionally, it has even been suggested that "the taking and removal of the stolen property" is necessary.^[4895] "Few parts of criminal law", says Milton,^2k "present as much difficulty as contrectatio", and the retention of this rather ambiguous and indistinct notion of the Roman law of delict and its transformation into a key element of the modern crime of theft was not, probably, a very happy idea. The equally unspecific subjective requirement of lucri faciendi gratia is the most notable victim of the partial anglicization of the South African law of theft.^[4896] ^{^[4897] It has been replaced by the intention to deprive the owner of the full benefits of his ownership.^[4898] As a result, mere furtum usus no longer constitutes theft. This was generally accepted^[4899] until 1948 when the Orange Free State Provincial Division attempted to turn back the clock, at least as far as cases of unauthorized borrowing were concerned.^[4900] The court acknowledged that even (at least some of) the Roman-Dutch authors, motivated by a desire to circumscribe the range of application of the harsh post-medieval penalties for theft,^[4901] regarded furtum usus as not punishable.
But they had confined their remarks to the standard examples discussed in the Digest: cases of furtum usus characterized by the fact that the fur exceeded certain rights in respect of a thing that had previously been conveyed to him. A person therefore still committed theft, so it was argued, if he took away somebody else's property with the intention of using it for a certain period before eventually restoring it. This proposition was, however, rejected by the Appellate Division in R v. Sibiya,^[4902] the decision that authoritatively settled the common law in favour of the "intention to deprive permanently" test: in the words of Schreiner AC],^[4903] ^{^[4904] ^[4905] ^[4906] ^[4907] ^[4908] "[T]he law requires for the crime of theft... that the taker should have intended to terminate the owner's enjoyment of his rights or, in other words, to deprive him of the whole benefit of his ownership."
If furtum usus falls outside the scope of the modern South African law of theft, its definition is nevertheless still wide enough to cover cases of embezzlement²²¹ as well as of furtum possessions.²²² In that respect, again, it is the traditional Roman and Roman-Dutch approach that has prevailed.}}}}

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

1. The concept of theft in criminal law

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