The respondent was a Captain and commanding officer of the Vehicle Theft Unit of the South African Police in Witrivier. The unit's duties included seizing stolen or suspected stolen vehicles and safekeeping them as evidence for court and eventual return to lawful owners. The respondent was convicted in the Regional Court on four counts of contravening section 1(1) of the General Law Amendment Act 50 of 1956, involving the unauthorized use of four seized vehicles stored in the SAP 13 register: (1) two Toyota Hi-Lux bakkies used to transport furniture during a relocation; (2) a vehicle used as a bridal car; (3) a Mercedes Benz 300E used for a trip to the Kruger National Park; and (4) a vehicle used for private purposes from December 1993 to June 1994. Evidence established that police members were not permitted to use seized vehicles for any purpose other than official duties, and no valid consent could be granted for private use. The High Court set aside the convictions on counts 1-4, finding that the respondent had "control" of the vehicles and therefore could not be convicted under section 1(1).
The appeal succeeded. The convictions on counts 1 to 4 and the sentences imposed by the Regional Magistrate were restored.
For purposes of section 1(1) of the General Law Amendment Act 50 of 1956, 'control' (beheer) requires more than mere physical possession or detention (detentio). It requires complete control, namely physical possession together with lawful authority over the property, including the right or permission to use it or permit its use, either for a specific purpose or at discretion. The nature of the article and the circumstances relating to possession determine whether there is control. A police officer in charge of a vehicle pound who has custody of seized vehicles held as evidence has control only in a limited administrative capacity for the purposes authorized by the Criminal Procedure Act, not complete control. Unauthorized removal and use of such vehicles constitutes removal from the control of the institution that has lawful control, thereby satisfying the elements of the offence under section 1(1).
The Court noted with approval the dictum in Mokoena v Minister of Law and Order 1986(4) SA 42 (W) that where members of the police force use wide statutory powers, courts have a duty to ensure those powers are used lawfully and properly. The Court observed that an interpretation permitting a police officer such 'control' over seized property that he could use it for personal advantage with impunity would entirely negate the purpose of section 1(1). The judgment also referred to, but did not need to definitively resolve, academic criticism that section 1(1) is aimed at unlawful removal of goods rather than unauthorized use (usurpation of use), and thus may not achieve its intended purpose of making furtum usus (unlawful appropriation of use) a crime. The Court noted the analogy that when leaving a car at a garage for a tire change, one does not expect the mechanic to 'borrow' it for a trip to Victoria Falls.
This case authoritatively establishes the meaning of 'control' (beheer) under section 1(1) of the General Law Amendment Act 50 of 1956 in South African criminal law. It clarifies that persons who have lawful but limited detention of property (such as police officers with custody of seized vehicles, or mechanics with vehicles for repair) do not have such complete 'control' that unauthorized use falls outside the scope of the offence. The judgment protects individual property rights by ensuring that those with official or contractual custody of property cannot misuse it with impunity. It also establishes important limits on police powers, confirming that wide statutory powers must be exercised lawfully and that police officers holding seized property have only limited administrative control, not personal dominion that permits private use.