Die strafbaarheid van furtum possessionis in die Suid-Afrikaanse reg

Abstract

Theft in South African law is one of the most well-known common law crimes. It is also one of the crimes in respect of which opinions vary considerably. Furtum possessionis is one of the manifestations of the crime of theft at common law. The general requirements of furtum possessionis were already established in Roman law. Emphasis was not placed on the taker of the thing but on the particular position of the person who was deprived of the property. This approach was also followed in Roman-Dutch law. Fur tum possessionis in South African law can be defined as follows: It is the unlawful and intentional appropriation by the owner or someone else of a movable corporeal thing in commercio, in circumstances in which the possessor of the thing has a valid right of retention of the thing, with the intention of depriving the possessor permanently of control of the thing. Theft in the form of furtum possessionis differs in an important respect from theft in the form of the removal of a thing. In the case of removal the complainant can also be a person acting as a holder, that is someone exercising control of the thing on behalf of the owner. In the case of furtum possessionis the complainant is the person with the right of retention and from whose possession the thing is taken away. The accused either possesses the thing as an owner or as a holder before possession of the thing was transferred to the complainant. Mere possession is not enough. The possession of the complainant has to be accompanied by a right to retention. Furthermore the possession of the thing has to be lawful