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TINDER SWINDLERS: SUBSTANTIVE AND PROCEDURAL MATTERS PERTAINING TO ONLINE DATING FRAUD UNDER THE COMMON LAW AND THE CYBERCRIMES ACT

Van der Linde, Dr Delano Cole (2024) — Obiter

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DOI: 10.17159/obiter.v45i2.16550 (opens in a new tab)

Type:   Journal Article
Country:   Global
Tags:   AI-Enabled Fraud, Catfishing, Common Law Fraud, Criminal Procedure, Cybercrimes Act, Deepfakes, Law Enforcement, Platform Policy, Psychology, Romance Scams, Sentencing, Victim Experience
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Synopsis

            
This publication examines online dating fraud and catfishing, outlining their forms, impacts, and how South African law addresses them under both common-law fraud and the Cybercrimes Act. Its purpose is to define the phenomena, compare the respective offences, and consider procedural questions such as charge design, potential duplication of convictions, and sentencing. The author explains that scammers often use fake profiles to cultivate trust, fabricate emergencies, and obtain financial gains, with victims frequently experiencing financial loss and significant psychological distress. Catfishing—the use of someone else’s images or identity—overlaps with online dating scams and can involve evolving technologies such as deepfakes to create convincing personas. Methodologically, the article analyzes the elements of fraud at common law and the cyber fraud offence in the Cybercrimes Act, focusing on misrepresentation, prejudice (actual or potential), unlawfulness, and intent, as well as the cyber-specific requirements that the misrepresentation be effected by data or a computer program. It reviews causation debates and the role of potential prejudice, noting that the Cybercrimes Act mirrors the general structure of common-law fraud but imposes distinctions related to the means of commission. The piece then surveys procedural matters, including charge splitting, duplication of convictions, and competent verdicts, and discusses sentencing paths, highlighting minimum sentences under the Criminal Law Amendment Act and the Cybercrimes Act’s triggers. The work concludes that while online romance fraud can fit within either framework, prosecutors may prefer charging under the Cybercrimes Act for heightened penalties, though duplicative convictions are unlikely. It also cautions that the statute’s added utility is primarily in punitive provisions rather than expanding substantive reach, and it underscores the importance of awareness for victims and law enforcement.

          

        
                  

            
Identified Gaps

            
The paper identifies no empirical evidence on the financial implications of cyber romance scams in South Africa. It also identifies unresolved legal questions about whether cyber fraud under section 8 covers non-proprietary prejudice and whether causation is an essential element. The conclusion raises concern that victims and police may not recognize romance scams as crimes, but provides no evidence measuring this awareness.

          

        
                  

            
Methods

            
This is a South African legal-doctrinal analysis. It defines online dating fraud and catfishing, compares common-law fraud with cyber fraud under section 8 of the Cybercrimes Act, and examines procedural issues including alternative charges, duplication of convictions, competent verdicts, and sentencing. It draws on legislation, case law, regional instruments, academic literature, and illustrative reported cases.

          

        
                  

            
Limitations

            
The article does not present original empirical data on romance-scam prevalence, victims, offender behavior, reporting, or case outcomes. It expressly notes the absence of empirical evidence on the financial implications of cyber romance scams in South Africa. Its conclusions are primarily interpretive legal arguments focused on South African law, while victim and scam-pattern claims rely on cited secondary literature and examples.

          

        
                  

            
Future Work

            
Empirical research should measure the financial implications of cyber romance scams in South Africa. Legal research could also clarify whether section 8 of the Cybercrimes Act encompasses non-proprietary prejudice and whether causation is an essential element. Research on awareness among victims and police could assess whether recognizing romance scams as crimes improves reporting and enforcement.

          

              

    
    

        
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