Hello, I had a Consulting Business for a...

Asked by Coenie on 03-12-2019 09:34:15
Question posted in the Criminal Law category relating to Western Cape

Hello, I had a Consulting Business for about 5 years (2009-2014). I started getting less and less clients and eventually the business closed down. I had my last client in about 2014. Now out of nowhere the Commercial Crime unit called in the main consultant (MC) that worked for me. MC told me theyare investigating my (now defunct) business and that he (MC) made a statement. To date the two of us had a very good relationship but MC now asked me not to contact him again..I don't believe I committed any crime (although I certainly had some unhappy clients- but I believe those are civil matters). MC certainly was never a witness to any fraud/theft etc. I wanted to call the Investigating Officer (IO) but my lawyer friend advised against it- saying it's now a waiting game to see what they want to do. The problem is I destroyed all the clientele files since I believe only has to keep them for five years. So I have no paperwork of clients left. The turnover for the full operating period was about R3 million (but worked at a nett loss). Individually clients paid me between R400 (minimum) and R20,000 (maximum). I am 60 years old with a clean criminal record. I was charged with something similar 15 years ago with a different business but that case was withdrawn. The Investigating Offices has my cell phone no's and knows who my lawyers is (not sure if he has my address because I moved recently). HYPOTHETICALLY, if I had to be charged with fraud/theft of R3 million, in your experience and opinion: 1) Will they have to get affidavits from all the clients? (that will keep them busy for a long time) 2) In terms of the Crim Proc Act, for ease of bail purposes, what Schedule Offence would this be? (some say they look at the total amount i.e. R3m, others say they look at the amount PER complainant i.e. max R20,000. Which view is right? 3) I understand the risk of the former is always there, but in my circumstances, what are the chances that they will raid my place/arrest me by surprise VS calling me to come in to discuss things? 4. Will I be doing anything unlawful or unwise if I just go and see MC (my old consultant) to insist to hear what's up?

Answer to the Question

Posted by Att. Patrick on 03-12-2019 10:25:32

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Look, in my view you should adopt a wait and see attitude to this. If the IO receives a phone call from you, it might very well prompt him to investigate the matter further. If not, the IO might just look at the MC's statement, and might speak to 1 or 2 clients, and then might decide to drop the investigation. I don't think that you should contact the IO directly - not now. 

If you only had to keep your files for 5 years, then you were entitled to destroy them. Remember, it is the IO's job to build a case against you. If he doesn't have the relevant paperwork, that's his problem, not yours. If you still had tonnes of these client files, the IO could subpoena them from you and might then be able to use them as evidence against you. 

Re 1) - No, they could get affidavits from as many people as they wanted. Those people would however need to come to court to testify if they were a witness. The prosecutor couldn't just rely on affidavits. The people need to be cross-examined by your lawyer! 

Re 2) - You would look at the amount per complaint. i.e. the maximum would be R20,000. Imagine if SAPS arrested a pick picket who had stolen R100 from a million people. Would he be charged with theft of R100 from a million people (i.e. petty theft) or would he be charged with theft of a R100 million? Which is very different indeed! I think that it would be a schedule 7 offence. 

Re 3) - given the time delay, I highly doubt that there will be a "raid" on your house. The only time the SAPS do this is if they know that you have evidence and they are worried that you will destroy the evidence if you are given advance notice of anything. Because more than 5 years have gone by, I highly doubt there will be any raid. Don't worry about that. Rather, the IO will contact you and ask you to give a statement or be interviewed by him. 

Re 4) - no, not unless you've been charged and the IO has told you that the MC is a state witness and has warned you to stay away from the state witnesses. At present, you've not been charged. There is no case. You can speak to the MC, if he is willing to speak to you, but you can't demand that the MC speaks to you. 

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Answer Accepted

This answer was accepted on 03-12-2019 17:33:51

Information provided by client

Thanks so much

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