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Organised Crime

In 2010, the Fifth Conference of Parties to the United Nations Convention on Transnational Organised Crime identified cybercrime, identity theft, trafficking in cultural property, environmental crime, piracy, organ trafficking and fraudulent medicine as new and emerging crimes of concern.1

Of course, these headache woes for the authorities are in addition to the growing burden of ‘traditional’ organised crime: money laundering, drug trafficking, housebreaking, car-hijacking, human trafficking, arms and ammunition smuggling – to give a few examples. The United Nations estimates that organised crime, internationally, generates approximately US$870 billion every year.2

This is what the Prevention of Organised Crime Act 19983 aims at: combatting these kinds of crime. It falls under the authority of the Minister of Justice and Correctional Services, but mostly the implementation and administration of the Act is in the hands of the Director of Public Prosecutions and the National Prosecuting Authority.

There are, broadly speaking, a number of different categories of ‘organised crime’ which are the subject of the Act.

A. Racketeering

Traditionally, this was where crimes such as extortion, bribery and obstructing the course of justice were perpetrated in order to allow illegal business activities to continue. In terms of the Act, however, a ‘pattern of racketeering activity’ means the planned, ongoing, continuous or repeated participation or involvement in any of a long list of offences, which includes at least two of such offences.4 5

  1. Any person:6
    • who receives, or retains any property derived (whether directly or indirectly7) from a pattern of racketeering activity; and
    • who knows (or ought reasonably to have known8) that such property is so derived; and
    • who uses or invests any part of such property to acquire any interest in, or the establishment, operation or activities of any enterprise,

    is guilty of an offence.

  2. If you receive or retain any property, directly or indirectly, on behalf of any enterprise; and you know that such property derived from or through a pattern of racketeering activity, you are guilty of an offence.9

  3. If you use or invest any property on behalf of, or to acquire any interest in, or for the establishment, or operation or activities of any enterprise; and you know that such property derived from or through a pattern of racketeering activity, you are guilty of a criminal offence.10

  4. It is a crime to acquire or maintain any interest in, or control of any enterprise through a pattern of racketeering activity.11

  5. If, whilst managing or employed by or associated with any enterprise you conduct or participate in the conduct of its affairs through a pattern of racketeering activity, you commit a criminal offence.12

  6. If you are the manager of an enterprise, and you know that any employee or associate of the enterprise, conducts or participates in its affairs through a pattern of racketeering activity, you are guilty of an offence.13

  7. Conspiracy or attempt to violate any of the above provisions is a crime.14

B. Money laundering

The ‘proceeds of unlawful activities’ comprise any property or any advantage, benefit or reward derived, received or retained – whether directly or indirectly.15

  1. Any person who knows (or ought reasonably to know) that property comes from unlawful activities and enters into any transaction with anyone in connection with that property, is guilty of a criminal offence if the transaction is likely to have the effect of concealing, or disguising the nature, source, location, disposition or movement of the said property, or the ownership thereof, or any interest which anyone may have in respect thereof.16

  2. It is similarly an offence if the transaction is likely to have the effect of enabling or assisting any person to avoid prosecution, or to remove or diminish any property acquired as the result of an offence.17

  3. If you know (or ought reasonably to know) that property comes from unlawful activities, you commit a crime if you do anything in connection with such property which is likely to have the effect of concealing, or disguising the nature, source, location, disposition or movement of the said property, or the ownership thereof, or any interest which anyone may have in respect thereof.18

  4. Similarly, it is an offence if what you do with that property is likely to have the effect of enabling or assisting any person to avoid prosecution, or to remove or diminish any property acquired directly, or indirectly, as the result of an offence.19

  5. Any person who knows that another person has obtained the proceeds of unlawful activities, commits a crime if he enters into any transaction whereby:20
    • the retention (or control) by or on behalf of that other person, of the proceeds, is facilitated; or
    • the proceeds are used to make funds available for the other person, or to acquire property on his behalf or to benefit him in any other way.
  6. For that matter, any person who acquires, uses, or has possession of property shall be guilty of an offence if he knows that it is, or forms part of the proceeds of unlawful activities of another person.21

C. Gangs

For the purposes of the Act, a ‘criminal gang’ includes any formal or informal ongoing organisation, association, or group of (three or more) persons, and:22

  1. Any person who participates in (or is merely a member of) a criminal gang and who assists in any criminal gang activity is guilty of a crime.23

  2. It is a crime if any member of a criminal gang threatens to commit, or performs any act of violence, or any criminal activity.24

  3. It is also a criminal offence for a gang member to threaten any specific person, or persons in general, with retaliation in response to any act (or alleged act) of violence.25

  4. Any person who performs any act which is aimed at causing, promoting or contributing towards a pattern of criminal gang activity shall be guilty of an offence.26

  5. If you incite, instigate, command, aid, advise, encourage or procure any other person to commit, bring about, perform or participate in a pattern of criminal gang activity, you are guilty of a crime.27

  6. Moreover, if you cause, encourage, recruit, incite, instigate, command, aid or advise any another person to join a criminal gang, you will be guilty of an offence.28

Special note

If any one of these offences are committed on the grounds of a school, or any other educational institution (or within 500 metres) during hours in which the facility is open, or when minors are using the facility, such fact shall be regarded by the Court as an aggravating circumstance in your punishment.29

D. Access to information

The National Director of Public Prosecution may request any person employed in, or associated with, a government department or any statutory body to furnish him with all information that may reasonably be required for any investigation in terms of the Act. Such person shall furnish the information, and permit the National Director to have access to any registers, records, documents, and electronic data, which may contain such information.30

  1. It is an offence to disclose any confidential information, registers, records, documents or electronic data of which knowledge was acquired in the performance of functions in terms of the Act – except with the written permission of the National Director, or when required to do so legally.31

  2. Any person who knows that information has been disclosed about the proceeds of unlawful activities, or that an investigation is being, or may be, conducted as a result of such a disclosure, and then alerts, or informs another person so as to prejudice such an investigation, shall be guilty of an offence.32

  1. www.unodc.org s.v. ‘Emerging Crimes’. 

  2. www.unodc.org/toc

  3. As amended; the latest amendment is by way of Act 7 of 2013. A further amendment is intended by Act 18 of 2015, but it has not yet come into force. 

  4. These are set out in Schedule 1 to the Act. They include, mostly, the many diverse crimes involving violence, or dishonesty. 

  5. Section 1 – Definitions. 

  6. Section 2(1)(a). 

  7. This qualification is not repeated throughout, here, but it applies every time there is a reference to ‘derived’, or ‘invest’, or doing anything else, basically. 

  8. This qualification is, also, not repeated but it applies throughout. 

  9. Section 2(1)(b). 

  10. Section 2(1)(c). 

  11. Section 2(1)(d). 

  12. Section 2(1)(e). 

  13. Section 2(1)(f). 

  14. Section 2(1)(g). 

  15. Section 1 – Definitions. 

  16. Section 4(1) or (b)(i). 

  17. Section 4(1) or (b)(ii). 

  18. Section 4(b)(i). 

  19. Section 4(b)(ii). 

  20. Section 5. 

  21. Section 6. 

  22. Section 1 – Definitions. 

  23. Section 9(1)(a). 

  24. Section 9(1)(b). 

  25. Section 9(1)(c). 

  26. Section 9(2)(a). 

  27. Section 9(2)(b). 

  28. Section 9(2)(c). 

  29. Section 10(2). 

  30. Section 71(1). 

  31. Section 71(3)(a). 

  32. Section 75(1).