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JUSTICE PORTFOLIO COMMITTEE
20 October 1998
PREVENTION OF ORGANISED CRIME BILL [B118-98]: DISCUSSION
Documents handed out:
Summary of Representation on Prevention of Organised Crime Bill [ORG 38]
Amendments to be considered, 20 October 1998 [ORG 39]
Definitions of Organised Crime [ORG 40]
Characteristics of Organised Crime[ORG 41] (see appendix)
The committee discussed the first draft of the prevention of Organised Crime Bill [B118-98]. During the first half of the meeting, the committee members went through the changes which had been decided upon in the previous meeting. Subsequently, it discussed clauses three to eight of the Bill.
Mr Nel introduced the summary of amendments and changes, which had been decided upon in the previous meeting.
The two main points of discussion concerned:
a) Clause 2.2. and the definition of ‘criminal gang member’,
b) the simultaneous use of ‘unlawful activity’, ‘illegal conduct’, ‘offences’ and ‘criminal acts’,
c) the definition of ‘organised crime’.
Concerning a), Chairperson de Lange (ANC) stressed that in contrast to the criticism of various voices from NGOs, other civic associations and the media, the definition of ‘criminal gang member’ was neither unconstitutional nor problematic in regard to human rights. He emphasised that this Bill was neither going to criminalise the existence of gangs, nor gang membership. Instead, it prosecutes gang activity if it falls under illegal conduct. Likewise, the Bill prosecutes gang membership if it is involved in illegal conduct, but it does not criminalise gang membership itself.
Secondly, the Bill criminalises the activity of making somebody join a gang.
Mr de Lange maintained that the reason why the media etc interpreted the Bill as one that criminalised gang membership was that those persons mistook the fact that the definition of a ‘criminal gang member’ referred to clause 14 of the Bill and not to clause 12, which deals only with the participation in illegal conduct, but not with gang membership in general.
In relation to this issue the committee discussed (b) the problem that various bills simultaneously used the expressions ‘unlawful activity’, ‘illegal conduct’, ‘offences’ and ‘criminal acts’, without specifying how far they defined the same activity. Considering the use of those terms in the legislation of other countries, the committee agreed to give the committee members some time to reflect on the implications and then to decide upon one term which would be used universally.
In reference to c), the definition of organised crime, the committee held a compound discussion about which definition would be most suitable and if, at all, it was possible to define an all encompassing definition of organised crime. Considering the internationalisation of organised crime and the nexus between various different organised crimes like drug-deal, money-laundering, the trade with women, terrorism etc., one committee member argued for a broader definition which enabled the state to cope with the interaction of diverse crimes. Mr de Lange replied that such an endeavour might result in too broad a definition of organised crime, which in the end might prove too unspecified to prosecute any crime effectively. He proposed the committee should spell out what exactly the Bill was supposed to change and pleaded for an inclusive definition. The danger of an open clause, he stated, was that it might encompass ‘all or nothing’ and render the entire Bill useless. The committee agreed to deal with this question in the next meeting, especially considering the documents handed out from the SAPS, the Swedish Council and other organisations, which proposed different definitions of organised crime.
During the second half of the meeting the committee discussed clauses three to eight of the Bill. The only submission that had been sent in concerning clause three was a submission by the Banking Council.
Changes were proposed concerning the definition of ‘possessions’ of the person involved in unlawful conduct. Special attention was given to the definition of ‘possessions’ in relation to the practice of money laundering. In the existing definition, electronic transactions, which swapped accounts during a short period of time, were not included. However, the committee agreed that it was crucial to define a legal framework, which included such transactions. Bank clerks should be obliged to report the suspicious shifting of great amounts of money. Nevertheless, banks should not be obliged to check each single electronic transaction on its sincerity.
A bank clerk who found special transactions suspicious should have the duty to report his suspicion. The failure to do so would be criminalised. However, a bank clerk who supervised a transaction which later proved criminal, but who did not raise his suspicion for various reasons at the time of the transaction could not be prosecuted.
The committee agreed to amend a clause, which criminalises the failure of any bank to report an existing suspicion against obscure electronic transactions. Furthermore it proposed a clause which endowed the bank with the duty to investigate suspicious transactions.
In addition, in order to avoid the practice of money-laundering through trust accounts of lawyers, as happens in the USA, the committee agreed to amend a clause which evicts the use of lawyers’ trust accounts for money-laundering.
Finally, the committee decided to put special attention on the penalties for organised crime. Mr de Lange felt that the proposed penalties of 30, 15 and 2 years were far too short for such high crime that the Bill deals with. One committee member pointed out that those penalties are only additions to other crimes which are committed in relation to organised crime, like murder, theft etc. and therefore the final penalty for a criminal will probably be well beyond 30 or more years. Mr de Lange replied that this Bill was especially drafted to criminalise the ‘big fish’, the bosses of gangs and criminal associations who had probably delegated those ‘petty criminal acts’ like theft and murder and were therefore only to be charged on the bases of the Organised Crime Bill. In this respect he pleaded for much higher penalties that enabled to convict organised crime on a long-term basis.
Discussion started on Chapter 4 - Prevention of Criminal Gang Activities. Section 42 subsection (1), based on legislative precedent, was seen as covering the activities of gang leaders, who do not usually commit specific crimes, but instruct other gang members to commit them. Subsection (2), avoiding double jeopardy, was considered necessary to apply also to the two other offences, viz; racketeering and money laundering. Subsection (3) was felt to be valid, particularly in view of recent threats of revenge carried in the press. The chairperson felt strongly that the media must be prepared to give evidence in cases where they had provided publicity to criminal elements.
In Section 43 subsection (1) the chairperson initially felt the penalties were too low, but it was pointed out that this was intended to cover lower-level street gang activities, rather than the behind-the-scenes activities of the gang leadership. The drafters explained that it was based on Californian RICO (Racketeering Influenced Corrupt Organizations Act) legislation. Section 43 also includes membership of a gang, involving knowledge particularly of the pattern of criminal activities carried out by that gang and/or its individual members.
The chairperson emphasised the importance, as incorporated in Section 43 subsection (2), of keeping gang-related activities away from the most vulnerable group - school children, and he felt the provisions should be tightened, with less discretion left to the courts. Mr van Heerden(NP) and the Imam Solomons (ANC) queried the 300 metre distance chosen. Section 44 was seen as important because it applied to any offence under any law, not only those covered in this Bill.
Schedule 4 was considered next, and it was noted that it was aimed at dovetailing the provisions of this Bill with those of the Proceeds of Crime Act of 1996.
There was considerable discussion about whether confiscation of the proceeds of crime as a result of criminal proceedings would be thrown out by our Constitutional Court as containing an element of extra penalisation on top of the main sentence. The drafters reported that this had happened in the case of similar UK legislation which was disallowed by the European Court of Human Rights. This judgement would be looked at in detail. However, the chairperson felt very strongly that removing such proceeds from gang leaders was only removing from them what had never been legitimately theirs. He pointed out that if it was disallowed in terms of criminal proceedings, it could still be effected in a completely separate civil process, linked only by the fact of a criminal conviction for a specific crime .
Mr Hofmeyr pointed out that under section 4 the provisions do not apply to the proceeds of generalised criminal activity, but of specific crime of which the accused has been convicted, or of closely related criminal activity. The onus rests on the accused to prove that a certain amount of his property has been acquired from legitimate sources, when proportionality will be applied. The evidential obligation lies on the accused.
There was discussion of the relative strength and appropriateness of the terms "prima facie evidence" and "presumption" in section 5 . The definition of "absconding" in section 6 was discussed and it was decided that six months was sufficient interval before resumption of proceedings. Ms Camerer enquired what the position would be if the proceeds of crime formed part of the estate of a dead convicted gang leader.
Under section 6 the committee discussed the relative authority vested in "investigating Director", "Director", "Deputy National Director" and "National Director". The chairperson wished to be assured that senior officers would have the power of review.
The general tenor of the meeting was to make the legislation as tough and effective a tool as possible in the fight against organised crime, without running foul of the Constitutional Court. Having dealt with the first 9 sections of Schedule 4 the meeting ended at 5.15 p.m. The business of the committee would continue on the following morning.
CHARACTERISTIC OF ORGANISED CRIME
The following list of characteristics of organised crime may assist Member States prepare their National Situation Reports. At least six of the following characteristics must be present, three of which must be those numbered 1, 5 and 11, for any crime or criminal group to be classified as organised crime.
1. Collaboration of more than 2 people;
2. Each with own appointed tasks;
3. For a prolonged or indefinite period of time;
4. Using some form of discipline and control;
5. Suspected of the commission of serious criminal offenses;
6. Operating on an international level;
7. Using violence or other means suitable for intimidation;
8. Using commercial or businesslike structures;
9. Engaged in money laundering;
10. Exerting influence on politics, the media, public administration, judicial authorities or the economy;
11. Determined by the pursuit of profit and/or power.