Holding on to company property

[BusFact]

BD - I think your situation was different - you started something with someone. Joe above worked for someone. If the company lays a theft charge against him it might not go to court, but that charge will stay on your record. You have to ask yourself do you want that ?

Can't see much difference from a legal perspective. The difference seems to be one of means with which to pursue the case.

I'd say they would be on shaky legal ground, claiming theft (a criminal charge) of an item they gave him. Its not even theft under false pretences.

What they may have is a civil case where they could sue him for the return of the laptop.

But as has been alluded to above, I think everyone concerned would be better off not bringing the legal community into this argument.

I have recently resigned. The company still has to reimburse me around ZAR3000 for expenses. I have not yet received my final salary, nor a reference letter. I am allowed to hold on to company laptop and mobile until I get paid?

Are you worried they won't be paying you? Have they requested those items?

If both parties want their stuff before they give what is due to the other, then you have a stalemate, and the lawyers will get richer.

I'd say return the laptop and the mobile, if they have asked for them. Mainly because the company is probably within its rights to take those back whenever it wants. You on the other hand are only entitled to your pay at the end of the month.
If they do not refund you or don't pay your salary in full, including reimbursements, only then would I suggest you react by going to the CCMA.

You really do have the stronger bargaining position as your legal recourse is free (CCMA). I don't see the point of causing animosity because you think they might not pay you. For all you know they will.

[HR Solutions]

I'd say they would be on shaky legal ground, claiming theft

If a company owns something and someone else has it and does/will not return it, it is theft.

[sterne.law@gmail.com]

You will not be able to go to the CCMA as they do not have jurisdiction for statutory money (salary, leave etc.)
They only get that authority when there is also a dismissal issue before them, then they may deal with both issues.
That leaves the department of labour - good luck with that.

Of course you may be pre-empting the non-payment (unless they have a track record).
It seems a high risk to burn a bridge, maybe get dragged into a nasty scrap and that for R3000. As much as it is your money, and every cent counts, the risk versus return seems poor, if there is no guarantee of non payment.

[AndyD]

Did they specifically request the laptop is returned?

If theres items on the laptop that belong to you such as images, documents, scans of personal documents such as ID book, bank statements, music you've purchased or installed programs etc then I'd say you'd at least have a valid claim to keep the laptop in your posession until your personal items are removed from it. I'm sure that could take a while, especially if you're needing the R3K in outstanding salary to pay a computer guy to do it for you.

[BusFact]

If a company owns something and someone else has it and does/will not return it, it is theft.

Sorry, going a bit off topic here, but its much murkier than that I believe.
1) It has to have been unlawfully appropriated. In this case it wasn't, it was given to him.
2) There must be intent to deprive the owner of the property permanently. Again not the case here.

A good example is the debt I may owe you. The money belongs to you, but your service is in dispute so I decide I will not pay it back. Not theft. Civil matter.

Or

A bank repossesses my car when I default through a civil process, not criminal theft, even though they are still the owner (although I agree the ownership term here is used loosely).

[HR Solutions]

It has to have been unlawfully appropriated. In this case it wasn't, it was given to him.

As far as I see it, it was on loan to him for the period he works for the company. I "give" all our consultants laptops for the period they work for us. The day they leave it gets returned to the company. If I want or need to use it or need to do an upgrade it must be available to the company. So it is not a matter of giving it to him. It is still the company's property.

[BusFact]

Absolutely. It remains the company property and must be returned. All I'm saying is that I don't think its criminal theft if it doesn't get returned. Rather its a civil case where the company would have to sue the ex employee for the return of the goods.

There is a SAPS crime category for using a vehicle without the owners permission, but I think this only applies when it was taken by someone known to the complainant without their permission at the time, but who may have had permission in the past. Also not sure if this applies to other types of assets too.

The only concern I would have is that even if the SAPS CSC opens the case (which I think is unlikely), and the detective proceeds to court with the matter (less likely) and the prosecutor decides to prosecute, then according to you, the charge remains on your record despite the magistrate chucking it out of court. That might be a difficult situation to explain to a future potential employer.

[Basment Dweller]

I don't think its criminal theft if it doesn't get returned. Rather its a civil case where the company would have to sue the ex employee for the return of the goods.

This^

[sterne.law@gmail.com]

It is not theft because the intention is lacking.
See Van Collier 1970 1 SA 417 (A)
See http://www.saflii.org/za/cases/ZAGPJHC/2009/16.html