The overlap between the common law and Chapter 4 of the Prevention of Organised Crime Act: Is South Africa’s anti-gang legislation enough?

• Author: van der Linde, D.C.
• Published date: 03 November 2020
• Date: 03 November 2020
• Citation: (2020) 33 SACJ 273
• Pages: 273-301

The overlap between the

common law and Chapter 4 of

the Prevention of Organised Crime

Act: Is South Africa’s anti-gang

legislation enough?

DELANO COLE VAN DER LINDE*

ABSTRACT

The Prevention of Organise d Crime Act 121 of 1998 (POCA) was promulgated

in order to, inter alia, supplement the common law i nsofar it was ineffective

in dealing with cr iminal gang act ivity, particularly in t he Cape Flats in

the Western Cape. However, the new measures appear to be substa ntially

similar to the com mon law, therefore, nullifying the rai son d’êt re. This ar ticle

examines the ex tent to which the existing com mon law modalities overlap

with the measures promu lgated under POCA and attempts to ident ify those

scenarios in which it would be more adva ntageous to utilise either t he

former, the latter or potentially b oth. It is submitted that i f the extent of the

overlap is so great that the common law mod alities and the measures under

POCA are indist inguishable, then supplementar y or replacement legislation

should be considered.

1 Introduction

Before the enactment of the Prevention of Organised Cri me Act 121

of 1998 (POCA), certain common law mechanisms were available

to combat gang- or group-based crimes. Various new cri mes have,

however, been created under Chapter 4 of POCA (read with the

denitions contained in Chapter 1), specically s 9, that assist in the

anti-gang ght.

There are several broad, yet interrelated reasons for the promulgation

of additional legislation to deal with crim inal gang activity, specically

mentioned in the preamble of POCA. The rapid grow th of organised

crime, crimi nal gang activities, racketeering and money laundering not

only threatens the rights of t he inhabitants of the Republic of South

Africa but also endangers economic st ability, safety and stability,

* LLB (Stell), LLM (Stell), LLD (Stel l), Lecturer, Faculty of Law, Nort h-West University.

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.

273

(2020) 33 SACJ 273

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and the public order.1 Criminal gang activity, the subject matter of

this article, in par ticular, threatens the right to safet y and security

guaranteed under the Const itution of the Republic of South Africa,

1996 (Constitution).2 Gang-related murders, in particular, contribute

disproportionately to the provincial cri me statistics in the Western

Cape with 23,6% of all murders committed b eing attributed to gangs.3

The ineffectual nat ure of the common law and statutory law renders it

out of pace with the measures enacted to deal with t he aforementioned

phenomena. The traditional common law and statutor y law measures

were furthermore also i neffectual in deali ng with the leaders of

organised crime who simply dist anced themselves from the actual

execution of the crimes and could also not be str ipped of the unlawful

proceeds of their crimes.4 As Cowli ng points out, gang leaders on

the top of the hierarchal str ucture can avoid directly contributi ng

to criminal act ivities while subordinates on ‘street level’ execute the

crimes on behalf of thei r superiors.5 Save for the crime of incitement,

which has a comparatively high evidential requirement consider ing

the clandestine nature of gang-related act ivity, no mechanism was

available under the common law to hold such superiors criminal ly

responsible6 and strip them of thei r illegal proceeds.7

1 National Director of Public Prosecu tions v Mohamed 2002 (4) SA 843 (CC) in

reference to the preamble and long t itle of POCA. The pre amble specical ly states

that the ‘(…) pervasive presence of cri minal gangs in many communit ies is harmful

to the wellbeing of those co mmunities, it is necessary to c riminalise par ticipation in

or promotion of crim inal gang activities’.

2 Section 12(1)(c).

3 See South African Police Ser vice ‘Crime situation in Republic of So uth Africa twelve

(12) months (April to March 2018_19)’ South African Polic e Service, 12 Sept ember

2019, 18, available at htt ps://www.saps.gov.za/ services/april_to_march2018_19_

presentation.pdf, accessed on 14 February 202 0. According to these ofci al crime

statistics, 938 o f the 3,974 reported murders in t he Western Cape (where causative

reasons for those murde rs could be established ) were gang-related. Thi s also

represents 84% of al l gang-related murders in the co untry (a grand total of 1 120)

23–24.

4 Mohamed supra (n1) at paras [14]–[15]. Also see Mohunram v NDPP (L aw Review

Project as Amicus Cur iae) 2007 (2) SACR 145 (CC).

5 M Cowling ‘Fighting organised cri me: Comment on the Preventio n of Organised

Crime Bill 1998 ’ (1998) 11 SACJ 350 at 369.

6 It must be noted here that the responsibil ity of the leaders of cr iminal enter prises

is mainly reg ulated under Chapter 2 of POC A (which deals with racketee ring

offences), in particula r section 2(1)(f). Thi s section is contravened when a p erson

manages the operat ion or activities of an ent erprise and such per son ‘knows or

ought reasonably to have known t hat any person, whilst employed by or associate d

with that enterp rise, conducts or par ticipates in the conduc t, directly or ind irectly,

of such enterprise ’s affairs throug h a pattern of racketeer ing activity[.]’

7 Regulated prominently throug h Chapters 5 (dealing with t he proceeds of unlaw ful

activities) and 6 (dealing with c ivil recovery of property) of POCA.

274 SACJ . (2020) 2

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