International Fraud Awareness Week- and everything it entails

Written by DIONNE JACKSON
24 OCTOBER 2022.

Fraud, its effects, legalities, repercussions, and what companies and individuals can do to prevent it are all topics brought under the spotlight annually in November – during Fraud Awareness Week. This article briefly discusses and sheds light on these topics to ensure you, your company, employees and community are ready for Fraud Awareness Week!

WHAT IS FRAUD AWARENESS WEEK?

Dating back to 2000, Fraud Awareness Week was started by the Association of Certified Fraud Examiners (ACFE) and now takes place in the third week of November every year. This week acts as a global effort by hundreds of organisations to minimise the impact of fraud by pledging to spread fraud awareness and education in their companies and communities.

WHAT IS FRAUD?

In a criminal sense, fraud is defined as “the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to another”.

A fraudster can defraud others by either withholding important information or providing the other party with false information.

On the other hand, corporate fraud is undertaken by an individual or company that performs illegal activities in an unethical or dishonest manner to give the business or individual an unfair advantage. International Fraud Awareness Week is aimed at putting the spotlight on unethical and illegal behaviour like these.

WHAT ARE THE INEPT EFFECTS OF FRAUD?

Fraud causes billions in damage that negatively impacts companies, governments, and individuals worldwide. Additionally, fraud causes;

  • job loss;
  • reduction in quality of living;
  • change in social status;
  • negative reputation for an individual or corporate body;
  • loss of savings and investments;
  • no sense of trust in public institutions; and
  • a strain on resources

Thus, it is of significant value that International Fraud Awareness Week takes place.

WHAT ARE THE ELEMENTS OF FRAUD UNDER THE COMMON LAW?

The South African Courts utilise common law legislation and rules to decipher what elements need to be proven when it comes to fraud. In South Africa, the following elements need to be proven:

  • Unlawfulness – the crime committed has to be unlawful, and the conduct of the perpetrator has to be illegal;
  • Misrepresentation – an act or offence committed has to be of a false or misleading nature;
  • Actual or potential prejudice – the act of the perpetrator must have resulted in harm or potential harm or injury or potential injury;
  • Intention – clear intention must be shown; the perpetrator’s intention cannot be assumed, nor could the fraud have been a ‘mistake’ or resulted from a material mistake.

Although these elements need to be proved and may be proven by a party, the outcome in court is solely based on the unique merits of each case.

WHAT ARE THE CIRCUMSTANCES THAT WOULD JUSTIFY AN ORDER OF MAXIMUM PENALTY BY THE COURT?

Individuals can face an order of maximum penalty by the court if they are found guilty of fraud in the following circumstances:

  • Gratification of amounts of more than R500 000 from the crime;
  • Gratification of amounts more than R10 000 committed by a law enforcement officer; or regardless of the amount, an offence committed by a law enforcement officer acting as a part of a syndicate or any other group of persons in the execution of a common goal or conspiracy;
  • Gratification of amounts more than R100 000 if the person acted in furtherance of a common goal or conspiracy.

WHAT IS THE MINIMUM SENTENCE A COURT WILL CONSIDER UNDER THE CIRCUMSTANCES MENTIONED ABOVE?

Individuals may face one of the following sentences if convicted of fraud under any of the circumstances listed above:

  • As a first-time offender – imprisonment for a period not less than 15 years;
  • As a second offender – imprisonment for a period not less than 20 years; and
  • As a third or subsequent offender – imprisonment for a period not less than 25 years.
  • In addition to this, the corporate body can face substantial fines and penalties depending on the exact nature of the financial crime committed.

These are merely guidelines, and the presiding officer will exercise discretion regarding whether the term should be increased or decreased.

WHAT FACTORS ARE TAKEN INTO CONSIDERATION WHEN A JUDGE HANDS DOWN A SENTENCE?

Sentencing falls within the discretion of the presiding officer, and each sentence will depend on the unique circumstances of the matter and individual; however, the legislator has developed a mandate on sentencing principles. The presiding officer needs to consider the following factors before handing down sentences:

  • The gravity of the offence committed;
  • The interest of the public
  • Personal circumstances of the offender

The Principles set out above will be applied by the court on a case-to-case basis to adequately sentence a person convicted of having committed fraud.

HOW CAN BUSINESSES AND INDIVIDUALS PREVENT FRAUD?

The onus should not only lie with the board of directors, management, an inspector or an auditing team in the prevention of fraud but everybody in an organisation should play a role – thus, protecting the business’s reputation as well as finances from harm.

As per FraudWeek.com provided by the ACFE, the following tips have proven to be effective in preventing and reducing fraud in organisations:

  • conducting fraud training and raising awareness for employees during Fraud Awareness Week has proven to reduce median loss in fraud instances by up to 38%;
  • after receiving fraud training, employees should remain vigilant of fraud instances, evaluate accordingly, trust their instincts, and take the necessary action to help prevent or reduce fraud in the organisation;
  • having reporting mechanisms within the organisations, such as a hotline, an HR department or an auditing committee dedicated to receiving reports of irregularities in the company.

The act of committing fraud has severe repercussions in South African law, and thus, Burger Huyser Attorneys, its directors and employees are 100% committed to preventing and reporting fraud. We support and stand in solidarity with the objectives of International Fraud Awareness Week!

Should you be a victim of fraud our team of criminal attorneys at Burger Huyser Attorneys will gladly assist you in ensuring the perpetrator is brought to justice for the losses you suffered due to fraud.

Visit www.fraudweek.com for more tips and information.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE