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PORTFOLIO COMMITTEE ON JUSTICE
6 August 1998
PREVENTION OF ORGANISED CRIME BILL: BRIEFING
Documents handed out:
Sheriffs Amendment Bill amendments: final draft
Prevention of Organised Crime Draft Bill.
The committee went through new amendments to the Sheriffs Amendment Bill. They then voted on the Bill. They voted clause by clause and each was passed unanimously. This was followed by a briefing on the Prevention of Organised Crime Bill. Members of the Select Committee on Security and Justice also attended.
A few members of the drafting group attended:
Mr P Gastrow, Institute of Security Studies
Prof. H. Strydom, Univ. of Bloemfontein
Adv. Mbangini and Mkese, State Law Advisers
Adv. G. Nel, consultant
Adv. P. Smith, SA Law Commission
Mr Gastrow gave a brief background sketch. He stated that in developed countries there were different phases for fighting organised crime. South Africa in the past concentrated on arresting users, then the sellers, then even the key leaders. But even after arresting the leaders the crimes still continued as before. USA has reached the next phase by introducing repo legislation (ie forfeiting the proceeds of crime). South Africa only embarked on this in 1995/96 and this new Bill goes a long way in catching up with countries like the US. The presenter made the committee aware that a recent UN conference envisages more drastic action than this new Bill.
Moving to the Bill it was said that it targeted sophisticated criminals with expensive attorneys and accountants.
Chapter 2 created new offences based on the US legislation. It differed in wording and also includes sophisticated additions. This chapter makes it possible to investigate entire syndicates and not just individuals and individual charges. Participation in organised crime is made an offence.
Clause 2(1)(a) is a new offence. In terms of this section, if a person has been part of illegal conduct on two occasions, evidence can be led to their involvement in a syndicate. In the US there has been criticism that the legislation has been abused. 2(3) is therefore added to prevent abuse in that clause 2 refers to sophisticated organisations not street gangs.
Questions on Clause 2
Ms Camerer (NP) wanted to know why two and not three occasions of illegal conduct were used as the criteria and she also wanted to know if this came from US legislation.
Mr Moosa (ANC- NCOP Committee on Security and Justice), using an example, wanted to know if the pattern of illegal conduct referred to, could be applied to a businessman involved in customs fraud.
Mr Gibson (DP): Do we not require a definition of organised crime?
Mr Hofmeyr (ANC): In terms of 2(1)(d) why must it be shown that the enterprise is involved in illegal conduct.
Chairperson: Are two acts of illegal conduct or two convictions being referred to?
Mr Gibson: The Schedule 1 crimes are wide and have very little to do with organised crime. Why?
Mr Gastrow answered that the US refers to two incidences. Also the court has to be satisfied that on at least two occasions the person was involved in illegal activities. (Answers Ms Camerer and the Chair's questions)
There is no international definition of organised crime. The UN has come up with 6-7 alternatives. Even in South Africa it would be difficult to define it because it would differ from region to region.
Because there is reference to enterprise which is defined in chapter 1 the example of the businessman will not be covered by this Bill.
Prof. Strydom dealt with Mr Hofmeyr's question and agreed with him that it was an unnecessary requirement.
Mr Gastrow responded to the last question by Mr Gibson saying that Schedule 1 crimes were deliberately made so wide because even sophisticated groups are involved in a gang rape etc.
Mr Gastrow continued with Chapter 3 which deals with forfeiture without conviction.
Clause 5 - If police have a reasonable suspicion that property is being used in criminal activity then a restraining order can be applied for. The registrar will give notice to the person involved who can come and show that that property was gained through legitimate means. It was a US experience that these people did not come forward to give such evidence because it was under oath. The State could therefore obtain a final order for the property. Under clause 26 Banks have to hand over information to investigators when requested. Banks are in favour of this because now they can justify giving out client information. Therefore under chapter 3 phase 1 deals with the restraining order which is given on a reasonable suspicion. The second phase is the forfeiture order making the assets a possession of the state.
Mr Hofmeyr wanted clarity on Clause 19.
Prof. Strydom explained that the onus is on the owner to show why the property must not be part of the restraining order. A problem of constitutionality was envisaged but the speaker said it was all right since the person has a special knowledge of the property.
Mr Landers (ANC) said that there was a conflict between the presumption of innocence and the seizing of property without conviction.
Mr Gastrow answered that that the European Court of Human Rights was looked at as well as amendments the US had made to make it constitutional. He added that the Bill has more safeguards than most European Countries.
Chairperson: What if the property found has no connected person?
In this situation the Bill does not cover the circumstances. There must be a link between the property and a person.
The Chair also wanted to know about property damaged while attached and a bona fide third party wants to recover damages.
Mr Gastrow answered that the Bill did not address this issue.
Advocate Smith went through Schedule 3 and 4 (as he had to leave). There were no questions because the members needed more time to go through the schedules properly.
Mr Gastrow went on with Chapter 4. This simply deals with the forfeited assets going into a fund. This is an administrative matter and needs to be debated by the committee. Also it is an area where the Justice and Finance ministers need to be involved.
Chapter 5 deals with street gangs. The provisions were also based on US legislation. It does not outlaw gangs or criminal gang membership. But if a person is involved in a pattern of gang activities it is an offence.
Mr Moosa asked why the definition of gang included the term "ongoing" .He said that they can easily get around this definition by changing names etc.
Mr Gastrow responded that chapter 5 does not refer to sophisticated organisations but street gangs and by nature and assumption they are territorial and seek safety within that group. Also having no "ongoing" in the definition is too wide.
The chair asked for all the international cases and legislation to be made available.
The meeting was adjourned.
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