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 preliminary elements can be found under

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

participant in a criminal gang and that a pattern of criminal gang

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

ago, much uncertainty still exists as to the interpretation of various

elements of the preliminary requirements under Chapter 1. This

article examines the requirements set out in Chapter 1 of POCA, with

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

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 POCA (which

deals with racketeering and is similarly structured to Chapter 4). This

article will ultimately illustrate that courts have largely ignored these

denitions which gave rise to legal uncertainty. Various suggestions

will be made regarding the amendment or desired interpretation of

these denitions.

1 Introduction

The introduction of Chapter 4 of the Prevention of Organised Crime

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

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

1 This work is based on the research supported wholly by the National Research

Foundation of South Africa (Grant Number: 120651). The opinions, ndings and

conclusions expressed in this publication are that of the author and not the NRF.

This article is written based on research conducted for my LLD dissertation at

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

works from this research.

* LLB LLM LLD (Stell), Senior Lecturer, Department of Public 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 crimes include aiding and abetting a criminal

gang,3 threatening to bring about violence or criminal activity by a

criminal gang,4 threatening acts of retaliation,5 causing a pattern

of criminal gang activity,6 incitement to bring about a pattern of

criminal gang activity,7 and gang recruitment.8

However, before an accused can be convicted under Chapter 4

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

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

established and that the individuals concerned are in fact members or

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

gang members individually or collectively contributed to a ‘pattern of

criminal gang 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 courts to not properly

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

the denitions is crucial as it enhances legal certainty 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 https://theconversation.

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

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

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

considering an applicat ion for bail, succinctly descr ibed the reality of gang activity

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 active participation will often constitute de facto gang

membership even if there is no formal gang membership.

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

‘[a]ny person’ and does not require gang membership or active participation in a

gang for an accused to be held liable.

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

12See, 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 discussed below.

13See further Part 2 below.

232 SACJ.(2021) 2

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