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PORTFOLIO COMMITTEE ON JUSTICE
27 October 1998
PREVENTION OF ORGANISED CRIME BILL [B118-98]: DISCUSSION
Documents handed out
Second draft of the Prevention of Organised Crime Bill [ORG 47]
The committee discussed some amendments to the Prevention of Organised Crime Bill which had been drafted by Mr Nel (legal adviser) at the request of the Chairperson, Mr De Lange (ANC). Some agreement was reached.
Mr De Lange repeated the concern he expressed in previous discussions regarding the circularity of the definitions of "criminal gang activity" and "pattern of criminal gang activity" (relevant to clause 12 which deals with offences relating to criminal gang activities). He said that the Bill cannot be passed with this problem in it and asked Mr Nel to draft some alternative definitions for consideration the next time the committee meets to discuss this Bill.
Offences Relating to a Pattern of Illegal Conduct
In a previous discussion the Committee had agreed that clause 2, which creates the offence of (generally speaking) receiving property derived from a pattern of illegal conduct and using or investing the property in an enterprise while knowing the property was derived from a pattern of illegal conduct, should be amended to create two crimes: one of knowingly receiving the property, the other of using or investing it. Mr Nel suggested a new sub clause 2(a) which would read:
"any person who
(a) on behalf of any enterprise
(i) receives or retains property derived, directly or indirectly, from a pattern of illegal conduct; and
(ii) knows or ought reasonably to have known that such property is derived, directly or indirectly, from a pattern of illegal conduct;
(iii) uses or invests, directly or indirectly, any part of property derived, directly or indirectly, from a pattern of illegal conduct, or the proceeds of such property in acquisition of any interest in, or the establishment or operation of, any enterprise; and
(iv) knows or ought reasonably to have known that such property was derived, directly or indirectly, from a pattern of illegal conduct;
shall be guilty of an offence."
The committee approved the new sub clause subject to the need for some fine tuning. Mr Nel also suggested that the word ‘property’ should be replaced with ‘income’ wherever it occurred in that clause because the American legislation, which this Bill is based on, uses 'income' instead of 'property' in the equivalent of clause 2. Mr De Lange expressed concern at this change, pointing out that 'income’ is not defined in the Bill and its general definition is narrower than the definition of ‘property’ contained in the Bill, thus ‘income’ will not capture the whole subject matter, which the Bill seeks to deal with. The Committee decided that ‘property’ should not be replaced by ‘income’.
Mr Nel suggested that the term ‘racketeering’ could be used instead of ‘pattern of illegal conduct’ because it is a term that most people are familiar with. The Committee made no decision regarding the suggestion.
Evidence Proving a Pattern of Illegal Conduct
Clause 2(2) provides that:
The court may hear evidence that may show that the accused is
involved in a pattern of illegal conduct, notwithstanding that
such evidence might otherwise be inadmissible, provided that
such evidence would not render a trial unfair.
Mr De Lange asked whether this provision could be re-worded to make the intention clearer, that is: to make evidence of similar fact and previous convictions admissible in order to prove a pattern of illegal conduct. Mr De Lange suggested that, seeing as an equivalent section has been on the books in the USA since 1983, the United States jurisprudence could be looked to for an interpretation of the provision, and that interpretation could be used in the drafting of clause 2(2). Mr Hofmeyer (ANC) undertook to research the United States jurisprudence and report back to the committee.
Mr Maree (NP) clarified the intention of the provision, stating that evidence of similar fact or prior convictions would not be used to prove that a person committed a particular crime but to establish that crimes which have already been proven are part of a pattern. Mr De Lange added that if a person is on trial for engaging in a pattern of illegal conduct, and the person has prior convictions it would be wasteful of time and resources to force the prosecution to prove all those crimes again rather than simply adducing evidence of the convictions.
Authorizing and Withdrawing Prosecutions
Clause 2(3) limits the discretion of the National Director of Public Prosecutions, or a person authorized by him or her, to authorize a prosecution for offences relating to a pattern of illegal conduct. Mr Hofmeyr asked why this limitation was required, saying it would be preferable to give the National Director an unfettered discretion and to trust his or her judgement. Mr De Lange responded with concerns that the National Director is able to delegate authorizing power so an unfettered discretion could end up in the hands of a low-level officer who lacks the requisite experience and knowledge of the purpose and significance of this legislation. He stated that he would like a sub clause providing that the National Director may delegate to another director, but no one else. He added that he desired that same situation in relation to authorizing the withdrawal of a prosecution. He said it is essential that the officers dealing with organised crime are officers who have knowledge of the particular significance of organised crime and the ways in which it differs from ordinary crime. The Committee agreed that the limit on the National Director’s discretion would be rejected and his or her power of delegation would be discussed further.
Mr De Lange also requested a provision which would set priorities which the police and Director of Public Prosecutions must adhere to when making decisions in relation to prosecutions. He said that crime fighting in South Africa is uncoordinated and sometimes crime fighting resources are allocated inappropriately. He would like a provision, which requires:
- co-ordination in combating organised crime so that one operation does not compromise another; and
- the allocation of resources so that organised crime is treated with the seriousness which it warrants.
The committee agreed to raise the penalty for an offence relating to a pattern of illegal conduct. They agreed to increase the (upper limit) 30 year jail term to life imprisonment. Mr De Lange suggested increasing the upper limit of the monetary fine to 1 billion rand. Mr Landers (ANC) advised the Committee that after Gauteng raised fines for illegal gambling to a similarly high sum many of the illegal gamblers moved to Durban and Cape Town. The committee agreed to raise the upper limit of the fine to 1 billion rand - however after Mr A Nel (ANC) pointed out that 1 billion can mean either 100 million or 1000 million, the committee agreed to raise the upper limit to 100 million rand.
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