Introduction
This advice will consider the potential grounds of appeal for Thabo following his conviction for stealing M10,000 from Mrs Naleli. The central issue is whether Thabo’s actions in initiating an unauthorised Electronic Funds Transfer (EFT) from a customer's account to his own to cover a personal debt meet the legal requirements for the crime of theft under the law of Lesotho. This advice concludes that an appeal against the conviction is unlikely to succeed as his conduct appears to satisfy all the required elements of the offence.
The Elements of Theft in Lesotho
As the matter concerns Lesotho, the applicable law is the Roman-Dutch common law as influenced by statute, primarily the Penal Code Act 2010. Under Lesotho’s common law, theft is defined as the unlawful appropriation of movable corporeal property belonging to another with the intention of permanently depriving the owner of that property (Snyman, 2014). For an appeal to be successful, Thabo must demonstrate that the Magistrate’s Court erred in finding that the prosecution had proven all of these elements beyond a reasonable doubt. The key elements to consider are the act of appropriation (contrectatio) and the intention to permanently deprive (animus furandi).
Application of the Law to the Facts
The Act of Appropriation (Contrectatio)
A potential ground of appeal could be that Thabo did not commit a physical act of taking, as would be required for the theft of tangible property like cash. The subject matter of the theft here was not physical money, but a credit in a bank account, which is a form of intangible property known as a 'thing in action' or a personal right against the bank.
However, this argument is weak. The courts in jurisdictions that follow Roman-Dutch law, such as South Africa, whose decisions are highly persuasive in Lesotho, have long accepted that theft can be committed in respect of intangible assets. The act of appropriation (contrectatio) has been interpreted broadly to mean any assumption of control over the property of another without their consent. In S v Graham (1975), it was held that instructing a bank to debit one account and credit another is a sufficient act of appropriation. By initiating the EFT, Thabo caused the bank to reduce its liability to Mrs Naleli and increase its liability to him. He therefore exercised control over Mrs Naleli’s credit with the bank, which constitutes appropriation. Furthermore, the Penal Code Act 2010 of Lesotho explicitly defines 'property' as including "things in action and other intangible property" (s 2), confirming that a credit balance is capable of being stolen. Therefore, the argument that no appropriation occurred is very unlikely to succeed.
The Intention to Permanently Deprive (Animus Furandi)
Thabo must also have had the requisite intention to steal. This is the mens rea element, known as animus furandi or the intention to permanently deprive the owner of their property. Thabo might argue that he did not intend to permanently deprive anyone, as he was using the money to settle a debt with his employer, the bank.
This argument also has little prospect of success. The intention to deprive relates to the owner of the property, who in this instance is Mrs Naleli. Thabo knowingly and without authorisation took the M10,000 credit from Mrs Naleli's account and treated it as his own by using it to satisfy his obligations. This act demonstrates a clear intention to terminate Mrs Naleli's rights to that portion of her credit balance. The fact that he used the money to pay a debt to a third party (Maluti Bank) is irrelevant to his intention concerning Mrs Naleli's property. He intended for her to be permanently deprived of that M10,000, and for him to benefit from it, which satisfies the requirement for animus furandi. A potential argument based on a ‘claim of right’ would also fail, as Thabo had no honest belief that he was entitled to take money specifically from Mrs Naleli’s account. His claim was against the bank for his salary, and his debt was to the bank; neither involved Mrs Naleli.
Conclusion and Advice
Thabo’s actions appear to satisfy all the legal elements for the crime of theft. He unlawfully appropriated property belonging to another by initiating an unauthorised EFT, thereby exercising control over Mrs Naleli's credit with the bank. He acted with the intention to permanently deprive Mrs Naleli of her property by using the funds for his own purposes. The arguments that intangible property cannot be stolen or that his intention was merely to pay a debt are not supported by law.
Therefore, the advice to Thabo is that he has no viable grounds on which to appeal his conviction for theft. The Magistrate's Court correctly applied the law to the facts of the case, and an appeal would have a very low probability of success.
References
- Lesotho Penal Code Act 2010.
- S v Graham 1975 (3) SA 569 (A).
- Snyman, C.R. (2014) Criminal Law. 6th edn. LexisNexis.
