High Court Ref. No.

: 2/2014

IN THE HIGH COURT OF SOUTH AFRICA

THE STATE

AMELIA NXUMALO
_________________________________________________________________________
REVIEW JUDGMENT

KGOELE J

[1] The accused was convicted of Theft of clothes valued at R2195-00 on her plea of
guilty and sentenced to R6000-00 or six months imprisonment, half of which was
suspended for three years on appropriate conditions.

[2] The facts of the matter emanating from the questioning of the accused in terms of
section 112 (1) (a) of the Criminal Procedure Act 51 of 1977 inquiry can be
summarised as follows:- The accused went to Edgards’ Stores with no intention to
buy clothes because she had no money. According to her, her aim was to check if
the clothes were on sale in order for her to come back at a later stage when she has
money. Whilst inside the shop she took some boys clothes and a pair of tekkies and
hid them between her thighs with the intention to take them without paying as there
was no security officer patrolling at the section she was. The security officer spotted
her strange movement when she was passing the section where women’s clothes
were, because she was struggling to walk properly. On realising that the security
 officer saw her, she took out the said clothes and held them by the hand. The
security officer approached her and found her holding the clothes by the hand.
Upon being asked why she was doing that, she explained her situation and the
police were called to the scene to arrest her. She admitted in court that she had the
intention to take the said clothes for her children without paying, and further, to sell
same to buy diapers and milk.

[3] When the matter was laid before me through an automatic review, I raised some
concerns regarding the conviction of the accused in relation to whether she ought or
not to have been convicted of attempted theft. The presiding magistrate replied by
saying amongst others that she was satisfied that the answers given by the accused
were sufficient to satisfy the elements that are necessary to constitute an act of
appropriation because:-

3.1 she concluded that the accused exercised control over the clothes because
she succeeded in gaining control over the property since she admitted during
the questioning in terms of Section 112(1)(b) of the Criminal Procedure Act
51 of 1777 that she put the clothes between her thighs, but because she was
struggling to walk properly the security officer spotted her and that is how she
got caught;.

3.2 had the security officer not spotted her strange movement, she could have
passed the till point without paying for the clothes;

3.3 accused also admitted that she did not have money to pay for the clothes;

3.4 in her opinion, because she had time and space to hide the clothes as there
were no security patrolling at the section where she started hiding the

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 clothes, the accused managed to exclude the owner or the person who was
in lawful control over the property from exercising such control.

[4] Snyman provides that the elements of the crime of theft which are applicable to all
forms of the crime are the following:
 an act of appropriation
 in respect of certain type of property
 which takes place unlawfully; and
 intentionally (which includes the intention to appropriate)
(See Snyman, Criminal Law, 4th Edition p.483)

[5] In this matter, the issue that need to be considered carefully is whether the act of
appropriation was completed to such an extent that a crime of theft was committed
or that the accused conduct only amount to a crime of attempted theft.

[6] In page 488 Snyman provides that the act of appropriation consist of two
components, namely:-
 a negative component (a person deprives the lawful owner or possessor of his property);
 a positive component (a person’s actual exercise of the rights of the owner in respect of the
property in the place of the owner).

He makes the following example to explain the requirements of the act of

“For the same reason “X” will not be convicted of completed theft if he is apprehended before he
has succeeded in depriving “Y” of his thing, although he was already in the process of committing
acts indicating that he had arrogated to himself the rights of an owner over the thing.”

[7] In page 489 he cautions that the fact that appropriation consists of two components
does not mean that all acts of appropriation necessarily consists of two separate
events, but that in exceptional cases, the negative component of appropriation may
be separated from the positive component.

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[8] In page 499 he states that the test to be applied to the act of appropriation in
shoplifting cases is the same as the general test to determine whether there was an
act of appropriation, namely, it should be enquired whether, at the time the person
was apprehended, the conduct had already reached a stage where the person
exercised effective control over the article.

[9] There are many decisions in our Courts in regard to shoplifting cases. Although
some are in conflict with one another, the latest trend reveals that it is proper to
convict a person for theft if, in a self-service shop, the person concealed articles in
his clothing with the intention to steal and was apprehended before reaching the till
point.

[10] The presiding magistrate referred to the cases of S v Lubaja 1987 (1) SA 226 (A)
and S v Dlamini 1984 (3) SA 196 (N) as an authority that support her view. It
should be noted that in both Lubaja and Dlamini the accused was apprehended
with the articles still concealed in their clothing and that amounted to a complete
theft although they had not passed the till. In casu, It is clear from the explanation
the accused gave during the section 112 inquiry that at the time she was
apprehended, she was holding the clothes in her hand and the clothes were no
longer concealed under her clothing. In S v Khumalo 1975 (4) SA 345 (N), the
accused had concealed a packet of meat underneath her jersey at a self-service
store. On realising that she was being watched, she removed the packet, placed it
back on the counter and left the store through a side door. He was convicted of
attempted theft. In my view, the Lubaja and Dlamini cases are not authority in the
circumstances of the present matter, instead, Khumalo is.

[11] In this matter, there is a further consideration that one can make that, the mere fact
that the accused could not walk properly to such an extent that a security officer who

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 was far from her managed to observe her strange movement, is indicative of the fact
that the accused was not in effective and full control of the clothes for one to safely
conclude that there was a completed act of appropriation. In my view, at the time
she was apprehended, the conduct of the accused had not reached a stage where
she exercised effective control over the articles. The presiding magistrate ought to
have convicted the accused of attempted theft.

[12] It follows that the resultant sentence imposed by the presiding magistrate cannot
stand as such. Although the accused has two previous convictions which are both
recent and relevant to the current offence committed, sight should not be lost of the
fact that she has been convicted of a lesser offence. No loss was suffered by the
complainant as the goods were also retrieved from her. I am of the view that a
lesser sentence than the one imposed by the trial court will serve the intended
purpose.

[13] Consequently, the following order is made:-

13.1 The conviction of the accused of “Theft” is hereby set aside and substituted
with the following:

“Found guilty of attempted Theft”

13.2 The sentence imposed by the trial court is hereby set aside and is substituted
with the following:-

“The accused is sentenced to Two Thousand Rands (R2000-00) or four

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 on condition the accused is not found guilty of theft and/or attempted
theft committed during the period of suspension.”

_______________
A. M. KGOELE
JUDGE OF THE HIGH COURT

I agree

_______________
R. D. HENDRICKS
JUDGE OF THE HIGH COURT

DATED: 02 MAY 2014