Tommy says he represents a company that builds and sells houses. Tommy sells John a new house and John pays him a deposit of R30 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 many fraud charges in the Regional Magistrate’s Court. John wants to know what he can do.

WHAT DOES THE LAW SAY?

John cannot take his claim to the Small Claims Court because the amount is too big and over the limit for a Small Claims Court claim which is R20 000. 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)

WHAT CAN HE DO?

John must sign an affidavit before a Commissioner of Oaths. The affidavit must say how he ‘lost’ the R30 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 R30 000 to John Clark.

Be careful of the following points when you advise anyone to take these steps:

• This procedure will only be useful if you are sure that the person against whom you are making the claim will be found guilty in the criminal case. If the person is not found guilty, then you will not be able to claim your money through the criminal court.
• Make sure that all the relevant information is in your affidavit before you hand it to the public prosecutor. For example, make sure that all relevant receipts have been attached to the affidavit. It is a good idea to show the public prosecutor your affidavit before you sign it to make sure that it has all the necessary details.
• Try to find out whether criminal charges have been finalised before filing an affidavit with the public prosecutor. If the police are still investigating, then it may be a long time before the case is heard and you get your money back.