1. THEFT OF WATER FLOWING IN A RIVER: MOSTERT v THE STATE 2010(2) SA 586 (SCA).
Tharien van der Walt University of Venda
Elmarie van der Schyff North-West University

2. Gert snr.
Gert jnr.

3. Can water flowing in a stream or river be stolen?
Court said- NO
Court argued:
In terms of the South African Law based on Roman –and Roman-Dutch law water in a public river is res communes.
As such it was incapable of being owned and thus incapable of being stolen.

4. Differentiate Common law: Theft Statutory offence
National Water Act prescribes and limits the sentence(s) to be imposed upon conviction of a charge of unauthorized use
Court has a wide discretion regarding sentence and may impose any sentence it deems fit

5. Common law: Theft
Court has a wide discretion regarding sentence and may impose any sentence it deems fit
Theft can be defined as an unlawful appropriation with the intent to steal of a thing capable of being stolen.

6. Is water in a public river a ‘thing capable of being stolen’?
The judges in the Mostert case clearly did not think so.
Only certain types of property can be stolen.
the property must be movable;
the property must be corporeal;
the property must belong to someone else; and
the property must be in commercio.

7. The property must belong to someone else
According to the well known Roman-Dutch authority, Voet- res publicae had already begun to be in ownership
Creative reasoning

8. The property must be in commercio
Although water in a public stream could not be owned privately,(in its natural state it is infinite and not susceptible to human control) it is possible to acquire ownership of portions or units thereof by rendering them susceptible to control.

9. Different times call for different measures