Criminal gang activities:A critical and comparative analysis of the statutory framework under South African criminal law

[摘要] ENGLISH ABSTRACT: Criminal gang activity presents a substantial threat to the lives of, in particular, theCape Flats community in the Western Cape. This dissertation investigates thelegislative response in holding gang members responsible, namely Chapter 4 thePrevention of Organised Crime Act 121 of 1998 ('POCA).POCA was promulgated in order to better address a trinity of crimes, namely moneylaundering, racketeering and criminal gang activity (generically known as 'organisedcrime). Despite significant strides in combating money laundering and racketeering,the same cannot be said for criminal gang activity. In fact, the incidence of gangrelatedcrimes has increased since the promulgation of the Act. During the 2017/2018financial year, for example, more than one in every five murders (21,6%) committed inthe Western Cape was gang-related.This dissertation opens by investigating the proliferation of criminal gangs in theCape Flats communities as well as the need for additional legislation in dealing withgang activity, rather than relying on existing means. The main reason for thepromulgation of POCA was said to be the ineffective common law modalities used indealing with group-based crime, namely the common purpose doctrine (in particular),conspiracy, incitement and public violence. These modalities were thereforescrutinised for two reasons. Firstly: to determine to what extent (and why) the commonlaw inadequately addressed gang activity. Secondly: if the common law is still usefuland how it can be developed to more effectively deal with gang activity.A critical and comparative analysis of the threshold requirements (under Chapter 1of POCA), specific crimes, as well as related sentencing for gang-related activityfollows. Foreign and international law relating to organised crime is consulted forinterpretive guidance. This analysis must be read together with the analysis ofChapters 1 and 4 of POCA under the Constitution of the Republic of South Africa,1996. It considers both the fair trial rights of the accused, as well as in terms of theState's constitutional duty to protect its inhabitants. These analyses cumulativelyelucidate the interpretive, substantive, institutional and constitutional issues withChapters 1 and 4 of POCA. It is ultimately found that Chapter 4 of POCA is both weakand substantially similar to the common law. If we accept the assumption that the common law is ineffective in dealing with gang activity as true, then we must concludethat a statutory manifestation thereof is equally as ineffective. Based on this argument,immediate statutory amendment, supplementation or replacement of both Chapters 1and 4 of POCA is called for. In this regard, alternative legal mechanisms, as well asforeign and international law is consulted. International law is consulted in particularto address the further punishment of gang leaders which is dealt with inadequatelyunder POCA.This dissertation concludes as well as making substantive suggestions foramendments to the text of POCA as well as a new crime addressing the liability ofgang leaders.

[发布机构] Stellenbosch University