Defining the contours of a ‘criminal gang’ and a ‘pattern of criminal gang activity’ under the Prevention of Organised Crime Act

• Date: 17 November 2021
• Published date: 17 November 2021
• Pages: 231-258
• Author: van der Linde, D.
• DOI: https://doi.org/10.47348/SACJ/v34/i2a4
• Citation: (2021) 34 SACJ 231

Dening the contours of a

‘criminal gang’ and a ‘pattern

of criminal gang activity’ under

the Prevention of Organised

CrimeAct1

DELANO VAN DER LINDE*

Before an accused can be convicted under Chapter 4 of the Prevention

of Organised Crime Act 121 of 1998 (POCA), two preliminar y elements

must be proven. These preliminar y elements can be found under

Chapter 1, and require the accused to be a gang member or active

participant in a cri minal gang and that a patter n of criminal ga ng

activity should exist. Even though POCA was promulgated over 20 years

ago, much uncertainty stil l exists as to the interpretation of var ious

elements of the preliminar y requirements under Chapter 1. This

article examines t he requirements set out in Chapter 1 of POCA, wit h

a specic focus on how courts have interpreted these requ irements.

To do so, reference is made, amongst others, to the California Street

Terrorism Enforcement and Prevention Act of 1988 (STEP) (as POCA

was modelled after this legislation) and Chapter 2 of POC A (which

deals with racketeering and is simi larly structured to Ch apter 4). This

article will ulti mately illustrate that court s have largely ignored these

denitions which gave rise to legal uncert ainty. Various suggestions

will be made regarding the a mendment or desired interpretation of

these denit ions.

1 Introduction

The introduction of Chapter 4 of the Prevention of Organi sed Crime

Act 121 of 1998 (POCA) brought about several new offences to address

especially given the prevalence of gang activity i n the Cape Flats in

1 This work is based on t he research supporte d wholly by the National Resea rch

Foundation of South A frica (Grant Number: 120 651). The opinions, ndings and

conclusions expressed i n this publication are t hat of the author and not the N RF.

This art icle is written base d on research conducted for my LL D dissertat ion at

Stellenbosch Univer sity. The Institution has gr anted permission to publish de rivative

works from this res earch.

* LLB LLM LL D (Stell), Senior Lectu rer, Department of Publ ic Law, Stellenbosch

University.

https://doi.org/10.47348/SACJ/v34/i2a4

231

(2021) 34 SACJ 231

© Juta and Company (Pty) Ltd

Cape Town.2 These cr imes include aiding and abetting a cri minal

gang,3 threateni ng to bring about violence or criminal activit y by a

criminal gang,4 threatening acts of retal iation,5 causing a pattern

of criminal ga ng activity,6 incitement to bring about a pattern of

criminal ga ng activity,7 and gang recruitment.8

However, before an accused c an be convicted under Chapter 4

of POCA, the state must prove specic prelim inary elements under

Chapter 1. First, a court must be satised that a ‘crim inal gang’ was

established and that the individuals concer ned are in fact members or

active participants of such gang.9 Second, there must be proof that these

gang members individually or collect ively contributed to a ‘pattern of

criminal ga ng activity’. Moreover, certain substantive offences under

Chapter 4 require membership10 to or active participation in a ‘crim inal

gang’. POCA further provides for aggravated sentences dependent on

gang membership or active participation in a gang.11 However, there

appears to be a disconcerting trend amongst cour ts to not properly

consider the technical meani ng of these denitions.12 Clarity regarding

the denitions is cr ucial as it enhances legal certaint y and promotes

fairness to the accused.13

2 See DC van der Linde ‘ Why a law designed to ght gang violence in Sout h Africa can’t

do the job’ The Conversation, 19 Februar y 2019, available at htt ps://theconversation.

com/why-a-law -designed-to- fight-gang-violence- in-south-afri ca-cant-do- the-

job -111568 , accessed on 26 Octobe r 2020. Also see Beukes v S (CC66/2019) [2021]

ZAWCHC 33 (25 February 2021) at para 41 where Mangcu-L ockwood recently, in

considering an applicat ion for bai l, succinctly descr ibed the reality of gang activit y

in the Western Cape:

‘It is well-known that in the Western Cape, criminal gang activity is an unruly force

that continues to torment communities, and is an issue that has created much

public interest. As indicated by the State’s opposing afdavit, schools sometimes

have to be closed, and people are scared to move around in areas affected by the

terror of gang activity.’

3 Section 9(1)(a) of POCA.

4 Section 9(1)(b) of POCA.

5 Section 9(1)(c) of POCA.

6 Section 9(2)(a) of POCA.

7 Section 9(2)(b) of POCA.

8 Section 9(2)(c) of POCA.

9 It is however submitted that ac tive participation w ill often const itute de facto gang

membership even if t here is no formal gang memb ership.

10 Specically, s 9(1)(a) to (c). The offence s under s 9(2)(a) to (c) merely reference

‘[a]ny person’ and does not requi re gang membership or act ive participation i n a

gang for an accused to be held li able.

11 In terms of s10(2) and (3) of POCA. Se e further Part 3.5 below.

12 See, eg, S v Mafahle (4/ 2018 ) [2019] ZAFSHC 266 (5 July 2 019) as well as S v Thom as

2015 JDR 1932 (WCC). These cases will be disc ussed below.

13 See furthe r Part 2 below.

232 SACJ . (2021) 2

https://doi.org/10.47348/SACJ/v34/i2a4

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