The Law Around Fraud, Theft and Other Commercial Offences in South Africa
- Featured article by LAWYERS-ONLINE.CO.ZA - June 2019
Commercial crime is on the rise in South Africa and globally. With technology improving faster than lawmakers can keep up with, it is imperative to stay in the loop of what commercial offences exist under South African law and what may in the works.
One of the most well-known forms of commercial crimes is fraud, which according to C R Botha (a well-known scholar on the topic) can be defined as “the unlawful, intentional making of misrepresentation which causes actual prejudice to another holds potential prejudice for another”. This definition can easily be applied to most forms of fraud and there are many. It seems that for every technology or commercial innovation, a form of fraud is invented. Let’s look at a few below:
- Credit card fraud
- E-banking fraud
- Inheritance fraud
- Insurance fraud
Each of these forms of fraud target a different industry or technology, but at its core is the intentional misrepresentation element of the crime of fraud – without that, a fraudulent act cannot take place. Interestingly, there does not need be a loss or negative consequence, but only the intent to cause it and the potential for it to take place. For example, should a person attempt to commit credit card fraud, the mere act of attempting the fraud is the crime, regardless of whether they succeeded in their objective.
Fraud and forgery often go hand in hand when it comes to commercial offences, particularly with forged invoices. For example, a person may create an invoice that bears a striking resemblance to a real invoice from a company but they may have substituted the payment details, such as the bank account, for their own in. The victim has no idea that they are paying into the wrong account.
Recently, South Africans also found themselves victims of wide-spread debit order scams where rogue debit orders for small amounts were being deducted, in the hopes that these minor amounts might be written off as bank charges. But eagle-eyed bank account holders quickly identified the fraud and legislation and the banking sector quickly stepped in to curb this new form of thievery.
It should also be noted that fraud is a common law crime, which means it not defined by legislation but by historical law references and case law.
Theft can occur as a result of fraud, which means we have to discuss it as well. This is also a common law crime and can be defined as the “intentional and unlawful appropriation of moveable corporeal property”, and this actually includes the unauthorised use of property. Let’s use credit card fraud as an example, should a person steal money using a credit card that does not belong to them, not only is that a crime, but every occurrence of money taking results in theft that prejudices the owner of the credit card.
Of course commercial crimes cannot be discussed without talking about corruption, which was formally adopted by legislation as a crime through the Prevention of Corrupt Activities Act 12 of 2004. Before this, in order to prosecute the crime, authorities would have had to get creative by finding another crime that fit the charges – such as fraud of theft. So let’s see what corrupt activities can be classified as a commercial crime:
- When a person tries to use their position at a company or public office to help another party get something they were not entitled to, in exchange for a cut of the profits, payment or the promise of a favour in the future. For example where someone promises another a contract with a company to clean floors in exchange for half of the value of the contract.
- Bribery of a person who works for a company or public office
- Offering to manipulate the price of something to suite some form of corrupt need, for example inflating the value of the cleaning contract above.
Other forms of legislation that may have a bearing on commercial crimes include the following:
- The Financial Intelligence Centre Act 38 of 2001
- Prevention of Organised Crime Act 1998
- Protected Disclosures Act 2000
- Prevention and Combating of Corrupt Activities Act 2004
- Public Finance Management Act 1999
- Local Government: Municipal Finance Management Act 2003
- Banks Act 1990
- Inspection of Financial Institutions Act 1998
- Mutual Banks Act 1993
- Co-operative Banks Act 2007
It should be noted that the law also places a duty on individual and on institutions to reports fraud, theft and other commercial crimes and in some instances it is a crime not to report it. The FICA act in particular lays out reporting obligations for fraud related to money, such as money laundering and financial terrorism.
So how are commercial offences such as fraud, forgery and theft prosecuted? Well the correct procedure is to lay a complaint with the South African Police Service, who if they are satisfied after their investigation a crime has taken place, will refer to the National Prosecuting Authority who has the final authority to decide whether or not to prosecute. Thereafter the laws of criminal procedure kick in and the persons accused of these crimes must defend themselves in the courts.
Should you need further insight into what fraud, theft and other commercial crimes involves in the legal sense, reach out to us and we will refer your query to a qualified lawyer who will be able to assist.