1. The Origin of Fraud

Fraud is undoubtedly one of the oldest crimes that currently exists and can be traced back, thousands of years, to the beginning of biblical times. Genesis 27 tells us how Jacob and his mother Rebecca intentionally deceived his blind father, Isaac, into blessing him instead of his older brother, Esau.

At the time it was customary for the oldest son alive to receive the blessing of his father, which held numerous advantages to the one receiving the blessing. The conspirators intentionally deceived Isaac into making him believe that Jacob was indeed Esau, whereby Esau was prejudiced by depriving him of his birthright.

2. Fraud – Criminal or Civil?

In practice fraud has both a criminal as well as a civil leg. Civilly, it is not referred to as fraud, but rather a misrepresentation, whereas criminally an offender will be prosecuted on fraud.

In civil fraud the scope of liability for a misrepresentation is much wider than that for criminal fraud. The reason for this is that the criminal law requires that the misrepresentation must have been made intentionally, whereas the civil law acknowledges that liability may rise from a negligent misrepresentation.

It many instances where a person can not be charged criminally on a misrepresentation made, the alternative would be to prosecute the offender civilly as it is much easier to proof the misrepresentation than in a criminal court.

3. The Definition of Fraud

It is of utmost importance that you are familiar with the definition of the term of fraud. From this definition you will be able to determine whether a person is indeed guilty of the offence of fraud.

The definition of fraud consists of a number of elements. An offender must comply with each of these elements. If he/she does not comply with any one of the elements of the definition of fraud, the offence is not committed and the offender can not be charged for the offence.

The term fraud can be defined as follow:

‘Fraud is the unlawful and intentional making of a misrepresentation with intent to deceive and to defraud by causing actual or potential prejudice to another.’

4. The Elements of the Crime of Fraud

As mentioned, when considering whether an individual is guilty of the offence of fraud, one needs to ensure that the act committed complies with the elements of fraud contained in the definition.

The elements of fraud, as from the definition are:

- Unlawfulness

- Intention

- Misrepresentation

- Prejudice

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