Syscon Essay.docx - Theft is generally regarded as the...

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Theft is generally regarded as the taking of someone else’s property illegally without their permission or consent. Rules of theft throughout the ages are considered to have originated from classical Roman rules governing this delict. This essay will examine the extent to which these Roman rules of theft have survived in South Africa Firstly we will look at the concept of theft under Roman law. Furtum is the equivalent of theft in Roman law. Paulos, a classical jurist, defined furtum as ‘the dishonest handling of a thing ( furtum rei ) in order to make gain either out of the thing itself or out of the use ( furtum usus ) or possession of it. Moveable objects were those that were considered to be subject to furtum, as one was able to privately own them 1 . The question of whether land could be stolen was a contested issue among jurists, Gauius on the other hand believed it was possible for land to be stolen. Theft is not simply limited to taking away another person’s object for appropriation purposes 2 . Theft includes the handling of a thing belonging to another by a non-owner, without their permission or against their will. In the book of obligations, it is listed as one of the four kinds of delict alongside iniuria and damnum iniuria datum 3 . In its original state furtum was used as protection from ordinary larcency. This statute follows a three part process, namely recognition, liability, and intervention. In the definition of theft in Roman law concepts such as contrectatio and animus furandi were prevalent. Contrectatio referred to the ‘handling’ of a thing, which is linked with the physical carrying away of the thing. The meaning extended to physical interference and the use of the object as if the owner ( furtum usus ). It was a prohibited action in terms of furtum . It was later given a broader meaning, which encompassed the mere meddling with the thing as well as being caught in the act. For example if a person took away a bit of wine from a cask, he would be regarded as a thief not only for what he has taken, but of the entire cask 4 . Animus furandi pertained to the requisite intention to steal. This denotes the intention to deprive an owner of their thing/object. The theft must occur without the consent of the owner and the prospective thief should know that he is acting against will of the owner 5 . A classic example is the
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