How to Prove Theft

by Henk Botha FIAC  B.IUR.  LL.B
© 2000. Bellstone Training (International) Limited
You may not reproduce this report in any way without the express written permission of

Bellstone Training (International) Limited
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This article describes South African law.

What is theft?

The legal definition of theft is —

• 1. the unlawful
  

• 2. taking
  
• 3. of a thing which has value
  
• 4. with the intention to deprive the lawful owner or the lawful possessor of that thing.

What must the employer prove?

An employer must prove all four these elements to prove that an employee has committed theft. If the employer can prove only elements one, two and three, there is no proof of theft. Incidentally, these three elements may prove another offence, namely “unauthorised possession of property”.

If an employer can only prove elements two, three and four, there is no proof of theft. It must prove the unlawfulness of the taking.

Element number four means that an employee must have had the "intention to steal".

A typical charge of theft would read as follows:

“You are charged with theft of approximately 6 Exide motor car batteries from the Company's workshop on 17 March 2000.”

This charge is specific enough for the employee to answer it. But during the hearing the employer must first lay the basis of the charge by producing evidence of the four elements mentioned above. Once it has given that evidence, one can say that the employer has laid a prima facie basis for the charge of theft. That is the charge which the employee must then answer.

Tip: If you feel that you may have insufficient evidence to prove the fourth element, you may charge the employee with an alternative charge of unauthorised possession of Company goods. The main charge and the alternative could then read as follows:

"You are charged with theft of approximately 6 Exide motor car batteries from the Company's workshop on 17 March 2000.

Alternatively to this charge,

You are charged with unauthorised possession of approximately 6 Exide motor car batteries from the Company's workshop on 17 March 2000."

A chairperson may, for instance, acquit the employee on the theft charge, but find him or her guilty on the alternative charge. It will depend on the evidence.