Does the Aggravated Sentencing Regime under the Prevention of Organised Crime Act 121 of 1998 Violate Freedom of Association? A Constitutional and Comparative Analysis

• Author: van der Linde, D.C.
• Pages: 288-305
• Date: 29 September 2021
• Published date: 29 September 2021
• DOI: https://doi.org/10.47348/SLR/2021/i2a6

https://doi.org /10.47348/ SLR/2 021/i2a6

288

DOES THE AGGRAVATED SENTENCING

REGIME UNDER THE PREVENTION OF

ORGANISED CRIME ACT 121 OF 1998

VIOLATE FREEDOM OF ASSOCIATION?

A CONSTITUTIONAL AND COMPARATIVE

ANALYSIS

Delano Cole van der Linde*

LLB LLM LLD (Stell)

Senior Lecturer, Stellenbosch University

Abstract

In terms of section 10(3) of the Prevention of Organised Cr ime Act 121 of

1998 (“POCA”), a court may impose an aggravated sentence on a c riminal

offender if the offender wa s a gang member at the time of the commi ssion

of a crime. The cour t is entitled to apply section 10(3) to the sentencing of

any common-law or statu tory offence, save for the gang- related offences

in Chapter 4 of POCA. As aggravate d punishment is attach ed directly to a

person’s status as a gang member, one must question whethe r such aggravated

punishment does not viola te the right to freedom of associa tion in section 18

of the Constitution of the Rep ublic of South Africa, 1996. Section 18 is an

unqualied right and subject only to the limitations clause under section 36 of

the Constitution . The purpose of this contribut ion is to investigate whether the

associational free dom guaranteed by the Constitution may b e limited in light

of considerations un der international law (such as the Intern ational Covenant

on Civil and Political Rights, the African Cha rter on Human and Peoples’

Rights and the European Convent ion on the Protection of Human Rights and

Fundamental Freedoms) as well as foreign law (specically the United States

and Germany). The consensu s is, broadly speaking, that p ersons are non-

deserving of associ ational protection where the cond uct connected to such

an association is cr iminal in nature. Increased c riminal consequence s are

justiable where a person’s unlawful conduct is also connected to their status

and activity a s a member of a criminal organisat ion. However, increased

criminal consequen ces based merely on a person’s membership of a criminal

organisation, as is the c ase in terms of section 10(3) of POCA, is considered

*This a rticle is based on research conducted in fulf ilment of the requ irements of an LLD degree at the

Faculty of Law, St ellenbosch Un iversity: DC van der Lin de Criminal Gang Activities: A Critica l and

Comparativ e Analysis of the Stat utory Framewor k under South Afri can Criminal Law, LLD d issertation

Stellenbosch Un iversity (2018) The instit ution has gr anted permi ssion to publish der ivative works fr om

this resea rch

(2021) 32 Stell LR 288

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https://doi.org /10.47348/ SLR/2 021/i2a6

arbitrary and ir rational. The conclusion is that section 10(3) of POCA should

be amended so that it applies onl y to crimes that are related to a conv icted

person’s gang-related activities.

Keyword s: gang activity; intern ational law; Prevention of Organised C rime

Act 121 of 1998; freedo m of association; active participant

1 Introduction

The Prevention of Organised Crime Act 121 of 1998 (“POCA”) was

promulgated in order to deal with money launderi ng, racketeering a nd

criminal gang activities (collectively referred to as “organise d crime”).

Chapter 4 of PO CA1 deals specically with offenc es relati ng to criminal

gang activities and supplements common-law measures such as the common

purpose doctrine, conspiracy, i ncitement and public violence. C onsequently,

the chapter contai ns various provisions dea ling with aiding and abetting a

criminal gang;2 threatening to com mit, bri ng about or per form any act of

violence or any crimi nal activit y;3 threate ning retal iation;4 bringing ab out

a pattern of cri minal ga ng activities;5 inducing contribution towards gang

activitie s;6 and gang recruitment.7 The promulgation of POCA was necessar y

as the previous de cade has shown a signicant rise in gang-related activities,

in pa rticular murder, especially in the Western Cape. During the 2018/2019

nancial year, 938 of the 1120 gang-related murders nationally were com mitted

in th e West ern Cap e.8 This represented 23,6% of all murders committed in the

provin ce,9 which, in turn, led to the deployment of the South African National

Defence Force in July 2019.10

An accused can, however, only be held criminal ly liable under POCA

for these offences if he or she wa s a member or active part icipant i n a

“criminal gang” and has c ontributed towards a “pattern of cri minal gang

activities”. T hese preconditions for ga ng liability generally l imit the scope

of the criminal net and p revent f ringe members from facing prosecution in

terms of POCA. While fringe members merely operate on the per iphery

of the gang (and p otentially aspire to someday join and participate in t hat

gang), active participants fully participate in the gang-related activities.11

The only difference between active par ticipants and gang me mbers is that

1 Ss 9-11 of POCA

2 S 9(1) (a)

3 S 9(1) (b)

4 S 9(1) (c)

5 S 9(2)(a)

6 S 9(2)(b)

7 S 9(2)(c)

8 South African Police Servi ce “Crime Situation i n Republic of South Af rica Twelve (12) Months (April

to Ma rch 2018_19)” (12-09-2019) SAPS 9_

presentat ion pdf> (access ed 14-02-2020)

9 938 of 3 974 murders were reported to be gang related See South Af rican Police Service “Crime Situ ation

in Republic of Sout h Africa Twelve (12) Months (April to March 2018_19)” SAPS

10 See J Gerber “ Ramaphosa gives g reen light for ar my to go into Cape’s gang-infe sted areas” (11-07-2019)

News24

infested- areas-20190711> (accessed 05-02-2020)

11 A Standi ng Organised Crime: A S tudy from the Cape F lats (2006) 104

DOES THE AGGRAVATED SENTENCING REGIME

VIOLATE FREEDOM OF ASSOCIATION? 289

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