DEALING WITH WHITE COLLAR CRIME

THE CRIME RESPONSE PLAN

CONTACT WITH THE MEDIA

In due course the media will learn of any major fraud. Organizations should accept this inevitability and make plans to attempt to control it. It is a sad but true fact that fraud is not good media copy in contemporary South Africa; a gory murder or hijack is much more likely to grab the headlines. Nevertheless it is important that a media strategy is agreed by the organization for every commercial crime case and where the SAPS or any other outside organization is involved, a common approach decided. The Enquiry Controller should establish the procedures for this as part of the response plan.

FUNDS RECOVERY

The Enquiry Controller should consider three remedial actions to recover funds; Tracing, Freezing and Recovery.

• Tracing
  Criminals do not hesitate to exploit the confidential nature of the banker/customer relationship. Speed is essential to follow the movement of any funds and organizations should not hesitate to call upon its own bankers to assist in the tracing process. Although there are limits to what they can achieve in tracing funds, bankers prefer to talk to one another, rather than the victim or the police. The philosophy of fraud investigation is "follow the money". In this respect the interests of the victim organization and the police will be the same and there are many ways in which the police can trace funds to their ultimate destination. The Enquiry Controller should discuss the possibilities of such assistance with both the organization's bankers and the police when establishing the detail of the crime response plan. Furthermore, a liquidator has extraordinary powers to obtain bank statements and other documents and has the right to pursue an insolvency interrogation of the perpetrator in order to "follow the money" and the perpetrator is obliged to answer all questions.
  
• Freezing
  More often than not the criminal is a step or two ahead of the victim organization, with the result that the chances of tracing being successful are not good. An anti-dissipation interdict is often an important weapon in the organization's armoury to recover funds. The essential purpose of an anti-dissipation interdict is to prevent a person who can be shown to have no bona fide defence against an organization's claim; have assets within the jurisdiction of the relevant court; and be intending to defeat any claim by the organization by hiding his assets from defeating the ends of justice, providing the organization can show a clear indication of loss. Clearly the organization's lawyers will be involved in obtaining such an order and the Enquiry Controller should discuss with them their requirements should the event occur. This should be documented in the plan. There are usually difficulties associated with obtaining an anti-dissipation order because of the requirement for proof at an early stage. Sequestration can often provide an effective alternative.
  
• Recovery
  Although the freezing of funds can be achieved relatively quickly the actual recovery is likely to take much longer. Obviously the quickest and simplest method of recovery is to obtain the criminal's acknowledgement of debt. If this is not possible recovery can be sought through the civil courts or by direct negotiation between the parties involved. In all of this the organization's lawyers should be involved and their involvement pre-planned as part of the response plan. Another potential method of recovery is during any criminal prosecution as the prosecutor can ask the Judge/Magistrate to make an order of court for repayment. The Enquiry Controller should be alive to this latter possibility although it would be unwise for an organization to plan on such an order being made.

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