The proliferation of criminal gang activities on the Cape Flats and the subsequent legislative and policy responses

• Citation: (2022) 28(2) Fundamina 73
• DOI: https://doi.org/10.47348/FUND/v28/i2a3
• Published date: 17 April 2023
• Pages: 73-116
• Author: van der Linde, D.C.
• Date: 17 April 2023

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https://doi.org/10.47348/FUND/v28/i2a3

ARTICLES

THE PROLIFERATION OF CRIMINAL

GANG ACTIVITIES ON THE CAPE

FLATS AND THE SUBSEQUENT

LEGISLATIVE AND POLICY

RESPONSES

DC van der Linde*

ABSTRACT

The proliferation of criminal gang activity is inextricably linked to the

lingering legacy of the apartheid regime. Decades after apartheid,

the communities of the Cape Flats in the Western Cape face a

continuous onslaught of violence, predominantly brought about

* Senior lecturer, Faculty of Law, Stellenbosch University. E-mail:

dcvanderlinde@sun.ac.za This article is based on research conducted for

my LLD degree at the Faculty of Law, Stellenbosch University. See Van

der Linde 2018. The University of Stellenbosch has granted permission to

publish derivative works from this research. It was rst published as a chapter

in Boggenpoel Z (ed) Law, Justice and Transformation (2022), which forms

part of the series Perspectives on Law from South Africa and Beyond: Future,

Present and Past. Permission to republish in amended form has been obtained

from the series editors.

(2022) 28(2) Fundamina 73

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DC VAN DER LINDE

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https://doi.org/10.47348/FUND/v28/i2a3

by rival gangs competing for drug territories. The purpose of this

contribution is to consider the government’s policy and legislative

responses to gangsterism through a historical and constitutional

paradigm. The contribution, rst, provides a brief historical overview of

the causative (especially legislative and socio-economic) factors that

led to the proliferation of criminal gangs on the Cape Flats. Secondly,

it investigates the violent reality of criminal gang activity in a post-

democratic South Africa. This part also focuses on the legislative

response to organised crime, in particular chapter 4 of the Prevention

of Organised Crime Act 121 of 1998 (which deals with criminal gang

activity), as well as on the various interventions and policies by the

national and Western Cape Government to address the challenges

related to gangsterism.

Keywords: gangs; Prevention of Organised Crime Act; Cape Flats

1 Introduction

Geographically, the Cape Flats in Cape Town has been described

as an area that “includes the sandy wasteland between the Atlantic

Ocean in the north and False Bay, which was constructed on a series

of lakes or vlei’s [sic] – large, marshy, water-lled hollows among

the Cape Flats sand dunes”.1 Despite this picturesque description,

the inhabitants of the Cape Flats live in the epicentre of criminal

gang activity in South Africa. They are confronted with the fear

of omnipresent crime and violence as a result of the prevalence of

daily gang-related activity.

“Criminal gang” is a contested term, but is colloquially

understood to refer to formally or informally structured groups

of individuals who, individually or collectively, commit acts of

crime and operate with common criminal objectives. These groups

then typically have common identifying signs, symbols and slang.2

1 Kinnes 2017: 76.

2 The term “criminal gang”, although contested, is dened under s 1(iv) of

the Prevention of Organised Crime Act 121 of 1998 (hereafter “POCA”) to

include, “[a]ny formal or informal ongoing organisation, association, or group

of three or more persons, which has as one of its activities the commission of

one or more criminal offences, which has an identiable name or identifying

sign or symbol and whose members individually or collectively engage in or

have engaged in a pattern of criminal gang activity”. See, also, Pinnock &

Pinnock 2019: 4, who describe a gang as “a group of people with shared

identity who meet continuously with common purpose. If that purpose

results in antisocial, illegal or violent behaviour and is harmful to others,

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THE PROLIFERATION OF CRIMINAL GANG ACTIVITIES ON THE CAPE FLATS

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https://doi.org/10.47348/FUND/v28/i2a3

Gang activity on the Cape Flats is mainly centred on the illegal

drug trade, and much of the violence – particularly murder – stems

from animosity regarding drug territories.3 It has been pointed

out4 that over and above the self-evident threat to the safety and

security5 of the communities living in the affected areas, gangs also

frustrate these communities’ right to access to education due to

school closures and gang recruitment around schools,6 and their

right to access to health care as a result of the closure of health

care services.7 It further exposes children to dangerous conditions

that are contrary to their best interests.8 It therefore cannot be

questioned that criminal gang activity violates the constitutional

rights of the inhabitants of the Cape Flats in Cape Town.

But what exactly is the role of the state in protecting these

constitutional rights of the inhabitants of the Cape Flats, specically

their right to safety and security? Particular to the theme of this

contribution is the ambitious promise made in section 12(1)(c) of

the Constitution of the Republic of South Africa, 1996 (hereafter

“the Constitution”), which states that “[e]veryone has the right

to freedom and security of the person, which includes the right

to be free from all forms of violence from either public or private

sources”. This creates both a positive and a negative duty on the

state.9 In its negative form, this duty requires the state to refrain

from all forms of violence and tyranny against its residents. In its

positive form, however, the state is required to act proactively and

the group is a criminal gang”. Other commentators, including Kinnes 2017:

14–18; Kinnes 2000: passim; and Gastrow 1998: passim, have pointed to the

inherent difculties in dening the term.

3 See Standing 2006: 97–112; Kinnes 2017: 26–27; Geldenhuys 2020: 18–25;

South African Police Service 2016a: 80; Western Cape Government 2019a;

Lamb 2018: 10.

4 Van der Linde 2020a: 2-36–2-37.

5 Section 12(1)(c) of the Constitution of the Republic of South Africa, 1996

states that “[e]veryone has the right to freedom and security of the person,

which includes the right to be free from all forms of violence from either

public or private sources”.

6 Idem s 29.

7 Idem s 27.

8 Idem s 28.

9 Currie & De Waal 2013: 281. See, also, Kemp et al 2018: 10, who argue that

modern societies expect more from a state than the mere maintenance of law

and order. Rights described here, such as safety and security, should actively

be pursued and promoted by the state and its various organs.

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