Abstract
LL.M.
Despite payment cards being of a fairly recent origin,1 these instruments of payment play an
increasingly significant role in commerce. With reference to credit cards, Cornelius already
in 2003 stated: “They fulfil various functions that are increasingly important at a time that ecommerce
is taking off at a tremendous pace.”2 Similarly criminals continuously use more
inventive and technologically advanced methods to commit fraud, including counterfeit card
fraud. Is the South African criminal law, however, keeping up?
The aim of this study is to investigate whether the various activities which form part of the
criminal business value chain relating to counterfeit card fraud, with specific reference to
bank payment cards, are sufficiently criminalised in South Africa or whether the inability of
our criminal law to address the challenges posed by this crime type necessitates the
introduction of further legislation.
In the first part of the dissertation the South African common and statutory criminal law is
investigated in some depth to establish the applicability thereof on the activities forming part
of the criminal business value chain relevant to counterfeit card fraud. The appropriateness of
certain statutory provisions is questioned and recommendations are made to amend current
legislation. An argument is also advanced for further development of the common-law
offence of theft to include identity theft and the unlawful copying and subsequent use of data.
Brief reference is made to the international situation.
Chapter 2 is an introduction to bank payment card fraud in South Africa focusing on the most
prevalent forms thereof being card-not-present fraud and counterfeit card fraud. Reference is
made to the manner in which offences related to counterfeit card fraud are currently
approached in our criminal courts and the limited impact prosecutions has on the prevalence
of this fraud type.