The Intention of Fraud

This element both applies to the Act (Misrepresentation) and the Consequences (Prejudice) thereof. The offender must have the intention of Fraud to both deceive and to cause prejudice.

In order to have intention, the offender must comply to the following criteria:

1.1 He/she must know that the misrepresentation is false.

1.2 He/she must have no honest believe in the truth thereof.

1.3 He/she must be indifferent as to whether it is true or not.

Intention is the requisite state of mind (Mens Rea) for the crime of fraud. This means that, in order to prove that a person had intention to defraud; the State must prove the state of mind of the offender at the time the misrepresentation was made. This is no easy task, making fraud one of the most difficult crimes to prove in a court of law.

In earlier years in Southern Africa law enforcement agencies relied on Section 245 of the Criminal Procedure Act 51 of 1977 in which it was stated that where a person is charged on a charge of which a misrepresentation is part of the elements of the crime, that such person knew in fact that he indeed made a misrepresentation which was false, unless the contrary can be proved.

In this act the State accepted that the accused knew that the misrepresentation was false, and the onus was placed on the accused to prove the contrary. The State had no need to proof that the misrepresentation was false.

This act was subsequently removed and it is now the responsibility of the State to proof the intention of the offender and to proof that he knew that the misrepresentation was false. The offender today have no need to present any proof, it is the responsibility of the State. If sufficient proof is not provided the offender will be discharged and criminal proceedings ceased.