Fraud Flashcards
define fraud
the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudice
what are the elements of fraud
misrepresentation
prejudice/potential prejudice
intent
unlawfulness
describe the misrepresentation element of fraud
a perversion or distortion of the trust
the accused represents that a fact/set of facts exists, which in truth does not exist
may be expressed or implied
positive act or omission
when is an omission fraudulant
when the accused is under a duty to disclose a fact (may arise from law), the non-disclosure of which may induce a complainant to act his prejudice
name the 5 cases that appear under the misrepresentation element
S v Salcedo
S v Thabeta
S v Mdontile
S V Yangeni
describe what happened in the cases of S v Salcedo and S v Thabeta
In the case of S v Salcedo
The Appellant found a credit card on the floor outside a shop, and went on a shopping spree. The accused was apprehended after after the 9th shop purchase and convicted of 9 counts of fraud
in the case of S v Thabeta
Accused 2 wrote an exam for accused 1 to get a certificate to teach after the accused failed the first time. Accused 1 did not attend the oral examination. because oral component was not completed there was no prejudice. The court found that there was misrepresentation although there was no final step. The accused was convicted of fraud and the court confirmed the conviction
describe the cases of S v Mdontile and S v Yangeni
in the case of S v Mdontile
The accused bribed a security guard to get onto the train platform but when confronted by the ticketor, he could not produce a ticket. the fraud conviction was confirmed
in the case of S v Yangeni
There was an omission on behalf on the accused. there is a duty on a parliament member to disclose gifts. the accused purchased a Mercedes at a 47% discount (during the arms deal debate). The failure to disclose misled parliament and amounted to fraud and the accused was imprisoned
describe the prejudice/actual prejudice element of misrepresentation
there must be actual or potential prejudice
potential prejudice must not be too remote there must a reasonable possibility that misrepresentation may prejudice another
prejudice does not need to be proprietary in nature
Test: is it reasonably possible that prejudice will occur
name the 3 cases under the prejudice/potential prejudice element
S v Mdontile
S v Mngqobisa
S v Kwastha
describe what happened in the cases of
S v:
Mdontile
Mngqobisa
Kwastha
in Mdontile
there was no actual prejudice
in Mngqobisa
The Appellant was convicted of fraud in respect of misrepresentation to the insurance company. The accused claimed he was driving a car when the accident happened but in was in fact his wife who had a learners license at the time. In terms of the insurance policy, extra excess was paid if the driver only had learners. The accused was convicted of fraud.
In Kwastha
The accused was convicted of theft and conspiracy to commit fraud with blank checks, he was sentenced to imprisonment.
The accused stole blank cheques from Eastern Cape Goverment department with the intention to draw a sum of R2 million
the court held that the value of the cheques was minimal but potential prejudice to the Eastern Cape government was substantial as the State would have been defrauded of R2 million, had he succeded
describe the intent element of fraud
the accused must be aware that representation is false and dolus is required
differentiate between the intention to deceive and the intention to defraud
the intention to decieve involves making someone believe that something which is infact false is true
while
the intention to defraud involves inducing someone to embark on a course of action prejudicial to them as a result of misrepresentation
