S v Van Wyk, S v Lewis (840/01, 849/01) [2002] ZANCHC 2 (25 January 2002)

S v Van Wyk, S v Lewis (840/01, 849/01) [2002] ZANCHC 2 (25 January 2002)

The court held that in both cases, the State proved only attempted theft and not the completed offence. The accuseds moved the items with the intention to steal but did not deprive the owners of control over the property. In Lewis's case, the accused was interrupted before he could remove the battery from the premises, and in Van Wyk's case, it was unclear why the goods were not removed. The court preferred the appropriation approach, requiring deprivation of the owner's control, over the contrectatio approach. Consequently, the convictions for theft were set aside and replaced with convictions for attempted theft. The sentences were also reduced to reflect the lesser gravity of the offence.

Citation
[2002] ZANCHC 2
Parties
Applicant: The State; Respondent: Dawid Van Wyk; Respondent: Cedric Desmond Lewis
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
25 January 2002
Case Number
840/01, 849/01
Procedural Posture
Review Application / Review of Criminal Convictions and Sentences
Outcome
Convictions and sentences for theft set aside and replaced with convictions and sentences for attempted theft.
Judges
Majiedt R, Lacock WNR
Legal Topics
Theft, Attempted Theft, Housebreaking, Contrectatio, Ownership and Control
Criminal Law Theft Attempted Theft Housebreaking Contrectatio Ownership and Control

Case Brief

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Parties

The State

Applicant

Dawid Van Wyk

Respondent

Cedric Desmond Lewis

Respondent

Procedural Posture

Review Application / Review of Criminal Convictions and Sentences

Legal Issues

  1. 1 Whether the facts proved by the State establish the completed offence of theft or only attempted theft.
  2. 2 Whether the accuseds' actions amounted to deprivation of the owners' control over the property.
  3. 3 Whether the sentences imposed were appropriate given the correct classification of the offences.

Ratio Decidendi

The court held that in both cases, the State proved only attempted theft and not the completed offence. The accuseds moved the items with the intention to steal but did not deprive the owners of control over the property. In Lewis's case, the accused was interrupted before he could remove the battery from the premises, and in Van Wyk's case, it was unclear why the goods were not removed. The court preferred the appropriation approach, requiring deprivation of the owner's control, over the contrectatio approach. Consequently, the convictions for theft were set aside and replaced with convictions for attempted theft. The sentences were also reduced to reflect the lesser gravity of the offence.

Court Disposition

Convictions and sentences for theft set aside and replaced with convictions and sentences for attempted theft.

Orders

  • In S v Van Wyk, the conviction and sentence are set aside and replaced with a conviction for housebreaking with intent to steal and attempted theft. The accused is sentenced to two years' imprisonment, half of which is suspended for five years on condition that he is not convicted of housebreaking with intent to...
  • In S v Lewis, the conviction and sentence are set aside and replaced with a conviction for housebreaking with intent to steal and attempted theft. The accused is sentenced to 18 months' imprisonment, six months of which are suspended for five years on condition that he is not convicted of housebreaking with intent...