Asked by the Customer on 07-01-2020 09:54:05
Question posted in the Criminal Law category relating to Mpumalanga

Hi

" A car salesman sold a vehicle on behalf of a client and the monies derived from the sale was paid into the car salesman''s business banking account. The car salesman subsequently withdrew monies from the account for his own personal use without permission from client. Will a case of Fraud/Theft be the appropriate approach?"

Regards

Barry Richards

Posted by Att. Patrick on 08-01-2020 09:10:57

Hi there,

I see that you haven't made a payment for the question, but I'm going to assist you a little. If you want to ask a follow-up question, please make the required payment.

Probably not, because this was a business arrangement, not a straight theft of money. Unless maybe you can prove that the car salesman always intended to defraud the person. 

Att. Patrick

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Yes relating to my question The car salesman has not released money for over a year now which tells me the car salesman is having intention to keep it. It really must be theft,

Posted by Att. Patrick on 10-01-2020 08:24:26

You've really got to look at the salesman's original intention, because that is what will need to be proven during a criminal trial in order to secure a conviction of either fraud / theft. 

If fraud - the prosecutor will need to prove that the salesman intended to defraud you in the manner that he did at the time that you entered into the sale agreement with him. 

Similarly, if theft - the prosecutor will need to prove that the salesman intended to steal the money from the sale of the car at the time that you entered into the sale agreement with him.

If the prosecutor can't prove the intention, then he won't get a conviction!

Then, it would be a civil case which you would need to proceed against the salesman for. Basically, breach of contrct and damages. The breach of contract aspect is that the salesman has failed to comply with the contract and pay you the money from the car.  The damages would then be equal to the selling price of the car, interest thereon, and any other damages that you sustained as a result. 

You could imagine that the salesman could say, "I sold the car, the money came into my bank account, my bank account was previously in overdraft, and debit orders went off, and your money was unintentionally used for those. I didn't intend to steal your money. My business is just doing badly and your money was used in the cash flow. I always intended to pay you as soon as I possibly could."

I think that the civil route is the more proper way to go. 

In order to proceed here, you'd need to send a letter of demand giving him 7 days to pay, and then you would need to issue a summons and sue him. If the amount was less than R20k, you could go in the Small Claims Court. Otherwise, you'd go in the Magistrates Court. 

You might also need a lawyer to assist you. 

I can't refer you to a specific lawyer, but I can direct you to www.southafricanlawyer.co.za, where you can find a list of qualified lawyers in your area who will be able to assist you further!

Att. Patrick

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