Tommy says he represents a company which builds and sells houses. Tommy sells John a new house and John pays him a deposit of R20 000. Two months later John has heard nothing from Tommy and the house has still not been transferred to John’s name. A friend then tells John that Tommy has been in court on a number of fraud charges in the Regional Magistrate’s Court. John wants to know what he can do.
John cannot take his claim to the Small Claims Court because the amount is too big. He can make a civil claim against Tommy in the ordinary magistrate’s court. But there is another way to recover the money rather than through a civil claim which can be expensive and can take a lot of time.
Tommy is guilty of fraud so John can lay a criminal charge of fraud against him. Section 300 of the Criminal Procedure Act says that a magistrate can make a civil judgment in a criminal case. This means that John can use the criminal court to help him get his money back from Tommy. If he follows certain procedures and if Tommy is found guilty of fraud in the criminal case then John will be able to recover his money after the criminal case.
(See: Criminal and civil actions)
John must sign an affidavit before a Commissioner of Oaths. The affidavit must say how he ‘lost’ the R20 000. He must then hand his affidavit to the public prosecutor who is dealing with the case.
The public prosecutor will then attach the affidavit to the criminal record. If Tommy is found guilty of fraud, the magistrate will not only sentence Tommy but also order him to pay back the R20 000 to John Clark.
Be careful of the following points when you advise anyone to take these steps: