LL.D. / Please refer to full text to view abstract

LL.M. (Banking Law) / When a bank employee commits fraudulent acts within the course and scope of his employment, he renders the bank vicariously liable for his fraud. The logical conundrum is that since a bank never employs someone to commit fraud, and since fraud is thus never in this sense within the course and scope of his employment, should the bank never be liable for this fraudulent conduct? If this were the law, the public could potentially be defrauded with impunity, because those defrauded would be left only with a claim against a fraudster who likely has no assets. This dissertation examines the common-law doctrine of vicarious liability and illustrates the sometimes-haphazard manner in which courts have applied the underlying principle to the varying facts that arise. It will be shown that the application of the doctrine to cases involving fraud by bank employees is particularly inconsistent and unsatisfactory. It will be proposed that the solution lies in the development of the common law so as to promote the spirit, purport and objects of the Bill of Rights, and particularly section 25 of the Constitution. 2 This paragraph conceptualises the vicarious liability doctrine. Paragraph 2 considers the application of the doctrine by the courts, and points to inconsistencies in approach. The third paragraph deals briefly with the position in two common-law jurisdictions, Canada and Britain. The final paragraph proposes a solution to the observed inconsistencies: an employee acts in the course and scope of his employment for purposes of imposing vicarious liability when the employer’s right not to be arbitrarily deprived of his property in terms of section 25 of the Constitution is acknowledged, and his vicarious liability is limited to cases where there is a rational relationship between the employee’s fraudulent conduct and the scope of his employment, and not an arbitrary deprivation. In considering the South African cases, it readily becomes apparent that the courts have already instinctively adopted the approach of examining the nature and extent of the deviation by the employee from the scope of his employment, but have not done so in the context of the property clause ...

LL.M. (Banking Law) / It has long been the vogue that the traditional fraud exception is the only exception capable of defeating the doctrine of independence in documentary-credit and performance-guarantee practice. The reason for this is self-explanatory, for it has been stated authoritatively that fraud unravels all. And on construction, this must be the correct legal position. Even then however, the fraud exception is not in itself unassailable. Given the nature and exigency of the contractual relationships peculiar to documentary credits and performance guarantees, it is indubitable for their success that these unique contractual relationships be independent of one another. The latter argument is well established in the law and practice of many jurisdictions. Commercial comity, aspirations, expediency, fair trading and a measure of certainty, inter alia, dictate the necessity for the sanctity and preservation of the doctrine of independence. Without such certainty, international commercial enterprise and entrepreneurship will be the victims. Nevertheless, it would still be fair to state that there is a broad consensus within various jurisdictions regarding the application of a fraud exception to the doctrine of independence, which simply cannot be said for an exception based on unconscionability. There are cogent reasons for this disparity, some in favour of and some against an unconscionability exception. The question which begs an answer is whether the recognition of such an exception would erode the certainty and cash characteristics, inherent and integral to documentary credit and performance guarantee practice. These instruments were, after all, designed and predicated upon tenets of certainty and considered as immediately redeemable cash. Ultimately, this debate involves a choice between embracing commercial certainty on the one hand, and fairness on the other hand. In South Africa however, unconscionability does not exist as a specific concept of law with wide and uncertain parameters. But, the concept of good faith, equally confusing, awkwardly finds its place in the South African general law of contract, but in an informative capacity to the substantive requirements of the law, and not as an independent general defence. A defence in the general law of contract in South Africa, premised on the lack of good faith is bad in law, given the established brocards such as inter alia, caveat subscriptor, caveat emptor, pacta sunt servanda, 5 and the contra proferentem rule. South African legal heritage and precedent have jettisoned the exceptio doli generalis, and this precedent is peculiarly protected by the judiciary at the highest level. Good faith, in the South African context, is not the equivalent of the so called doctrine of unconscionability analysed and discussed in the academic literature and court decisions of certain common-law jurisdictions, but the exceptio doli generalis may have been, or rather, if properly developed, could have been. And so, from a South African perspective, there is the added difficulty of considering the introduction of a foreign broad-based, uncertain and undefinable doctrine grounded in equity, when the narrowly defined concept of good faith, only informative of the substantive law, finds no general application in the law of contract in South Africa. Regard will thus be had to inter alia: the nature, scope and elements (facta probanda) of this exception; certain arguments for and against its recognition; its inability to be defined with the necessary precision required for legal efficacy and practice; its lack of certainty being in essence descriptive of a host of other conduct short of fraud and inclusive of fraud; and whether the case for its recognition might perhaps have merit and applicability in relation to performance guarantees, separate and distinct from documentary credits.

The fraud prevention measures in Unemployment Insurance Fund, North West Province, were evaluated in this study. The manual on fraud prevention measures was formulated and started implementation in 2000, and since !hen, no review was made. Different literature was reviewed to find out what other researchers say about the related problem. In reviewing literature, it was found out that fraud had an adverse effect in any business, and the best way to combat or prevent it, was to formulate and implement some preventative measures, monitor and review them at least annually. Data gathering was conducted by distributing questionnaires to different staff of Unemployment Insurance Fund throughout the North West province. The questionnaires were aimed at identifying the most vulnerable areas to fraud, evaluating the effectiveness of fraud prevention measures, identifying different types and causes of fraud and finding out whether contributors and their employers are well informed about the Unemployment Insurance Fund. The study found that the existing fraud prevention measures were not quite effective in the sense that they are reactive than preventive according to the respondents. Claims, accounts and registry sections were identified as the most vulnerable sections. The most prevalent types of frau din the UJF were found to he cheque, cash, and identity frauds, The study again found the main causes of fraud in UIF are ineffective internal controls, lack of strict supervision, income disparities and low salaries of lower level employees. It also came to light on the study that there has not been any significant change in fraud since the year 2000 after the formulation and implementation of fraud prevention measures among the ways to reduce fraud as suggested by the employees are salary review, constant supervision, intensive investigations and awareness campaigns what is essential to effectively reduce the level of fraud in the UIF is effective implementation of the preventive oriented internal controls coupled with strict supervision. / Thesis (MBA) North-West University, Mafikeng Campus, 2004

The use of credit cards has become a way of life in many parts of the world. Credit cards have also created many new opportunities for criminal activity. It is in this light that organizations such as VISA International have explored a variety of security alternatives by constantly reviewing security measures that may be applied to cards and devote considerable resources to the maintenance of security systems and programmes. These programmes mandated by the association, include uniform card standards, security standards for manufactures, embossing and encoding of cards, standards for mailing the cards and credit background investigations of applicants. These standards assist investigators in examining counterfeit cards and distinguish a counterfeit card from a genuine card. The constant reviewing of security features and methods by the association is to create a card that is technically difficult to alter or counterfeit. / Criminology / M.Tech. (Forensic Investigation)

Fraud and corruption cost South Africa billions of rand yearly. Institutions of higher learning are no less vulnerable to fraud and corruption than other organisations, but are also subject to risks that are unique to academia. The Public Finance Management Act. No.1 of 1999 requires Public entities including the councils (university or college controlling body) of public institutions of higher learning to adopt enterprise risk management, which includes a fraud and corruption risk management policy and procedures. The function of the fraud and corruption policy is to provide an objective strategy to prevent, detect and investigate any possible irregularity in order to prevent further loss in line with Corporate Governance requirements. The anti-fraud and corruption strategy measures include setting the appropriate tone by management of the institution, being proactive (fraud risk assessments), and being reactive (reporting process, investigation and taking appropriate action). The actions include disciplinary action and criminal or civil proceedings in order to recover assets lost. The procedures address the implementation of the policy. This research focused on identifying the relevant issues that could be included in the formulation of fraud and corruption risk management policies and procedures for institutions of higher learning. The research was conducted using a qualitative methodology consisting of a document analysis and interviews. It was found that, out of eleven institutions of higher learning investigated only one institution meets the criteria set out in the framework developed in the research as an assessment tool. The other institutions involved in the research did not have fraud and corruption risk management policies or procedures and therefore did not comply with the Public Finance Management Act.

The medical scheme industry in South Africa is competitive in relation to international standards. The medical scheme sector, as part of the healthcare industry, is negatively affected by the high rate of fraud perpetrated by providers, members and syndicates, which results in medical schemes funding fraudulent claims. The purpose of the study was to explore strategies to mitigate fraud in medical scheme claims. A qualitative research methodology was followed in this study, which adopted a case study approach. Empirical data was analysed through thematic analysis, with the aid of ATLAS.ti software. The study found that healthcare service providers mainly defraud medical schemes by submitting false claims. A holistic approach should be followed to mitigate fraud in medical scheme claims. This approach should encompass regularly identifying trends in fraudulent claims and implementing appropriate control strategies. Collaboration within the medical scheme industry and with other stakeholders would also help to elevate the fight against medical scheme fraud to a new level. Implementing the recommendations from the study will assist medical schemes to reduce the funds expended on fraudulent claims, thereby improving their financial viability and decreasing the rate of increase in medical scheme contributions for members. / Business Management / M. Com. (Business Management)

The use of credit cards has become a way of life in many parts of the world. Credit cards have also created many new opportunities for criminal activity. It is in this light that organizations such as VISA International have explored a variety of security alternatives by constantly reviewing security measures that may be applied to cards and devote considerable resources to the maintenance of security systems and programmes. These programmes mandated by the association, include uniform card standards, security standards for manufactures, embossing and encoding of cards, standards for mailing the cards and credit background investigations of applicants. These standards assist investigators in examining counterfeit cards and distinguish a counterfeit card from a genuine card. The constant reviewing of security features and methods by the association is to create a card that is technically difficult to alter or counterfeit. / Criminology and Security Science / M.Tech. (Forensic Investigation)

The concept of sustainability has become imperative for any organisation in order to survive and prosper in the long term. As such, the management of fraud risk has become an important component for organisations in order to achieve this objective. The purpose of this study was to explore the management of fraud risk within the South African private hospital sector. The study endeavoured to ascertain how private hospitals in South Africa manage fraud risk. In this regard, problem areas in the management of fraud risk were identified, and recommendations are provided in order to improve the management of fraud risk in the South African private hospital sector. Primary data was collected by means of survey research, which involved management staff at head office level and at hospital level, as these two groups were identified to have the required expertise and experience with regard to risk management procedures and practices within South African private hospitals. The findings suggested that South African private hospitals could improve their current risk management practices, in particular with regard to fraud risk. By implementing the recommendations provided by the study, private hospitals will be able to manage fraud risk more effectively. These recommendations will not only be beneficial to private hospitals, but will also have a positive effect on numerous external stakeholders, because the effective management of fraud risk could lead to considerable cost savings. The public hospital sector of South Africa would equally find the research findings and recommendations of value because it could also be applied to their fraud risk management practices. / Business Management / MCOM (Business Management)

The concept of sustainability has become imperative for any organisation in order to survive and prosper in the long term. As such, the management of fraud risk has become an important component for organisations in order to achieve this objective. The purpose of this study was to explore the management of fraud risk within the South African private hospital sector. The study endeavoured to ascertain how private hospitals in South Africa manage fraud risk. In this regard, problem areas in the management of fraud risk were identified, and recommendations are provided in order to improve the management of fraud risk in the South African private hospital sector. Primary data was collected by means of survey research, which involved management staff at head office level and at hospital level, as these two groups were identified to have the required expertise and experience with regard to risk management procedures and practices within South African private hospitals. The findings suggested that South African private hospitals could improve their current risk management practices, in particular with regard to fraud risk. By implementing the recommendations provided by the study, private hospitals will be able to manage fraud risk more effectively. These recommendations will not only be beneficial to private hospitals, but will also have a positive effect on numerous external stakeholders, because the effective management of fraud risk could lead to considerable cost savings. The public hospital sector of South Africa would equally find the research findings and recommendations of value because it could also be applied to their fraud risk management practices. / Business Management / M. Com. (Business Management)