The State Is Not Your Personal Debt Collector

Abrie van der Merwe – Associate

Any attorney who regularly goes to our criminal courts would have realised in the last few months that there had been a steady increase in fraud related matters in the “normal” magistrates’ courts. This is mainly due to the fact that a decision was made in the last year for the Specialised Commercial Crimes Courts to focus their prosecution on serious commercial crimes, such as money laundering, racketeering, corruption, etc.

The practical result of this decision was that most fraud related matters are given to prosecutors in other magistrates’ courts, where said prosecutors have not been specifically trained to deal with complicated technicalities that abound in such matters.

Fast forward couple of months and you end up with magistrates’ courts where the rolls are saturated with criminal dockets with “fraud” related charges. The material facts of such dockets are most of the times a perfectly legitimate business transaction or deal that fell through for one reason or another due to no fault of any of the parties.

It happens too often now that the complainant (usually the person who paid money) runs to the police station to report a case of fraud, because the suspect (usually the person who received the payment) failed to make the delivery as promised.

Now, this is not to say that these cases will never be fraud. If the product that was sold never existed or was not the suspect’s to sell in the first place, then clearly a misrepresentation was made, which is an essential element of the offence.

What happens often is that the complainant will allege fraud in a situation where there clearly was no misrepresentation made.  Picture the scene, a buyer agrees to purchase a very expensive piece of specialist equipment from you, an agent, who in turn has to import it from overseas. You receive a payment from the buyer and use that money to pay the distributor.  The product is loaded onto a ship and arrives in South Africa. Upon receiving the equipment you realise that the product has been irrevocably damaged during transit.  You are notified by the distributor that the product has been discontinued and no spare parts are available to fix it.  You offer to deliver the defective product to the buyer, which they (understandably) refuse. Instead of going through the rigmarole of having an attorney serve a letter of demand and issuing summons for their money, the buyer decides to allege that there was no product in the first place or that you have lied to the buyer in one way or another.

Thus, the arduous civil procedure is circumvented and the police official (who should have advised the buyer properly in the first place), becomes their personal debt collector who threatens you with arrest should you not refund the money.

Unfortunately, the problem, which was started by the buyer, is perpetuated by the police official (who opens the docket) and, further, the prosecutor (who decides to prosecute you and enrols the matter).

The above can be avoided by keeping proper records of all documents received and sent, as well as any and all correspondence (whether via Whatsapp or email) that relate to the transaction. It is also important to record anything discussed telephonically immediately on an email to the other person.

The above practice, by lay people and attorneys alike, has become far too prevalent and is not proper procedure. However, this does not mean that all similar circumstances won’t amount to fraud and (upon proper and honest advice from your attorney) in such circumstances it must be reported to the police.

In all other cases, the proper (civil) procedure must be followed.

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Advocate Cronjé Kriel short bio

  • State Prosecutor from 1994 to 2006.
  • Founding member and Senior State Advocate at the Johannesburg Commercial Crime Unit.
  • Since 2006 specialised in criminal litigation in the Magistrate Court, High Court and Supreme Court of Appeal
  • Member of the Gauteng Society of Advocates
  • LinkedIn profile

 

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