Criminal Law - Question of the Week

Facts:

You intend to buy materials from a company which materials you need to do renovations to your house. The company issues an invoice for the materials which amounts to R 110 000.00. The Company requests payment upfront and advises that the materials will be delivered within 4 weeks. In the 4 week period the company only delivers R 20 000.00 worth of goods and then fails to deliver the balance of the goods.

They advise there is a delay in the delivery of the goods to their store and hence the delay in delivery to you. You accept their reasoning and wait patiently for a further 4 weeks. After another 4 weeks, the same excuses in delivery of the goods continues. You just can’t wait anymore and request your money back. You remind the people working at the company that you were placed under the impression that had stock available and would not have purchased the materials from them if they were not in possession of the stock.

The Company then agrees to pay you your money back. You send them your banking details and request a refund of R 90 000.00. A further week goes by. You ask why they have not made payment yet and they advise it is with the accounts department for processing. A further 3 weeks go by with the same stories and the payment is just not forthcoming. It just seems that they are intentionally delaying the matter and lying to you. You are now in a position whereby you are now in a deficit of R 90 000.00 and just want your money back from this company.

Questions:

1. How do you sort this out?

2. Looking at the above, has the company not committed a criminal offence? Or is it just a civil matter?

Answer:

We really recommend that the moment you have problems in a case like this, start building your case by documenting everything. Make sure you save all messages on your cell phone and also save all your emails. Make sure to get all correspondence in writing. Ask them questions to which they have to provide you answers that you know you will assist your case. We would start by sending an email to them directly from the client whereby we would assist the client to place everything that has happened on record and then send this email to them and tell them that you are tired of the whole situation and that they must please confirm the amount that they will be paying back as well as ask them when they will pay this amount back. This does not have to be an aggressive email but more just an email to get them to respond and confirm that they are not disputing the facts and further to confirm that they owe you back the money as well as confirm that they intend to pay you back the money.

Once we have the above confirmed in writing from them, the matter can then proceed on two different bases. 1. Civil. 2. Criminal.

In terms of the civil action, this would be a very easy case to get a judgement on. You should by now have it in writing that they owe you the money and that they are now just delaying in paying the money back to you. I would assume these people would not defend the matter and thereby if you appoint the right law firm, it will be quite an easy summons to draft and then also get a default judgement provided the people do not defend the matter. If they defend the matter you can also ask your attorneys to apply for summary judgement. This sounds complicated but, again, if you have the right attorneys appointed, it should not be too costly and will also be a relatively simple process. If a judgement is obtained and the people don’t pay, we would then recommend applying for their sequestration. This can be a very useful way to get people to pay quickly in order to avoid being liquidated.

In terms of the criminal action, we would advise you to open a case at the nearest police station advising them of what has happened. There does not have to be a definite crime that has been committed before you can open a case. If you suspect that a crime has been committed, you can report it at your nearest police station and then request that they investigate the matter. Once the case has been reported you should receive the case number and then the details of the investigating officer (Hereinafter referred to as the “I/O”). It is imperative that you push the investigating officer to investigate the case and make sure that they used your money for what you paid for. If they used it for their own personal means then it will be a case of fraud and theft and the I/O must then take the matter to the prosecutor for decision.

We are aware that the above sounds very complicated and you will be pushed from pillar to post in trying to get it right but if done correctly, this can be very effective. In essence, this is part of what we do in that we assist clients in finding the right legal team as well as assist with the pressing forward of criminal cases. Should you have had an experience such as the above, you are welcome to contact us for some free telephonic advice and we will always gladly assist where we can.