CHAPTER 4 THE SOUTH AFRICAN LEGAL RESPONSE TO TRAFFICKING IN
4.5 PREVENTION AND COMBATTING OF TRAFFICKING IN PERSONS ACT 7 OF
4.5.4 FRAUD
According to C R Snyman,719 fraud is: “The unlawful and intentional making of misrepresentation which causes actual prejudice, or which is potentially prejudicial to another.”720
In order to prove the guilt of the accused, all the elements of this crime, which include prejudice, misrepresentation, unlawfulness and intention, must be proved concurrently in court.721 Each element will be discussed below.
(a) Unlawfulness
This refers to unlawful conduct that creates a false representation to the victim. This conduct should be morally unacceptable to the community.722
(b) Misrepresentation
With respect to trafficking in PLWA, this refers to an action that deceives or misleads the victims.723 Victims are induced and mislead by perpetrators through lies.
Misrepresentation takes place in many ways; it can be written, oral, by means of conduct or by remaining silent.724
(c) Intention
There are two principles of intention with regard to fraud.725 These are intention to deceive and intention to defraud. Perpetrators of this crime must have knowingly made
719 M Miller ‘Is theft a competent verdict on a charge of fraud’ available at
http://www.derebus.org.za/theft-competent-verdict-charge-fraud/ accessed on 13 September 2019.
720 Ibid.
721 G Kemp….et al. Criminal Law in South Africa 1 ed Cape Town: Oxford, (2012) 404.
722 S Naidoo The South African Criminal Law’s Response to the Crime of Fraud and Corruption within Local Government (Publish LLM thesis, University of Pretoria, 2017).
723 Ibid.
724 Ibid.
725 Ibid.
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a misrepresentation or foreseen that such misrepresentation might not be true.726 South African courts have indicated that both these elements must be proved in order to find the perpetrator guilty.727 In the case of Ndwabi v The State,728 the court held that intention to defraud is made up of two principal aspects, namely: intention to deceive, and the intention to induce a person to alter or abstain from his or her legal position. With regard to intention to deceive, the court followed the Derry v Peek729 precedent, in which the Lord stated:
Fraud is proved when it is shown that a false representation has been made (1) knowingly or (2) without belief in the truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no belief in its truth.730
The courts further follow the case of Ex parte Lebowa Development Corporation731 in which Stegmann J stated:
The essence of fraud in dolus eventualis appears to be the deceit practiced by the representor in suggesting that to be true which he knows may not be true.
He knowingly exposes the representee to a risk (that the representation may be false) and deceitfully leaves the representee ignorant of his exposure to that risk.
Any such case of fraud by dolus eventualis may, I think, be analyzed further to disclose another fraud underlying and accompanying the first. When anyone makes a representation of fact whilst knowing whether his misrepresentation is true or false, he thereby actually makes two distinct representation of the fact. The fact represents as fact that which he does not know to be either true of false. The second is a misrepresentation of fact relating to his own state of mind: it is representation (usually implied) that he has an honest belief in truth of the first representation. Such second
726 Ibid.
727 J Minnaar ‘Understanding fraud and white collar crime- the origin, definition and elements of fraud’
available at http://tei.org.za/index.php/resources/articles/fraud-and-corruption/1712-understanding- fraud-and-white-collar-crime-the-origin-definition-and-elements-of-fraud, accessed on 6 July 2019.
728 Ibid.
729 Ibid.
730 Ibid.
731 Ex parte Lebowa Development Corporation Ltd 1989 3 SA 71 (T).
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representation is one that he knows to be false, and it therefore establishes a case of fraud by dolus directus, simultaneously with the fraud by dolus eventualis relating to the first representation.732
Trafficking in PLWA is an organized crime; before committing this crime, perpetrators knowingly plan all the tricks and tactics to deceive the victims. When luring the victims, they foresee that their act of cruelty will cause prejudice. In cases where the victims escape danger of trafficking, perpetrators cannot claim that their false misrepresentation was not intended to cause prejudice. This is supported by the case of R v Dyonta & another,733 where the court held that:
If the misrepresentation is one which in the ordinary course is capable of deceiving a person, and thus enabling the accused to achieve his object, the fact that the person to whom the representation is made has knowledge or a special state of mind which effectually protects him from all danger of prejudice, does not entitle the accused to say that the false representation was not calculated to prejudice.734
(d) Prejudice
Misrepresentation must cause harm to the victims. Trafficking in persons involves a number of instances of fraud. There are a number of methods used by perpetrators to tempt the victims of this crime, and the method used depends on each case.735 PLWA find it is extremely hard to trust people because of fraud.736 There are hurt and inveigled by their own partners, family members and friends, because of the demand for their body parts.737 In the case of S v Gumede and Others, it is reported that one of the accused was the boyfriend of the deceased.738 Reports indicate that the boyfriend inveigled his girlfriend (Thandazile Mpunzi), who was living with albinism, to a particular area in Emanguzi.739 The girlfriend was then attacked and killed by the
732 Ibid.
733 R v Dyonta & another 1935 AD 52.
734 Ibid.
735 Ibid.
736 Ibid.
737 Ibid.
738 S v Bhekukufa Gumede Case No: CCD51/16(Unreported case).
739 Ibid.
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accused and accused number two.740 She was completely induced by her boyfriend.741 This unquestionably indicates that the accused misrepresented his state of mind to the deceased.