'Make gang bosses liable' for crimes carried out in their names

What do residents of the Cape Flats, Westbury in Johannesburg and the Northern Areas of Port Elizabeth have in common? They live in constant fear as gang members continue to kill each other and innocent residents almost daily. Although many solutions have been put forward to deal with gangs, one of the major problems is the ineffectiveness of anti-gang legislation.

This is according to Dr Delano van der Linde from the law faculty at North-West University. He obtained his doctorate in criminal law on Thursday  at the sixth graduation ceremony of Stellenbosch University’s December graduation.

"The Prevention of Organised Crime Act (Poca), enacted to combat, among others, organised crime, money laundering and criminal gang activities, has been inadequate to deal with criminal gangs because of several textual, institutional and constitutional shortcomings," says Van der Linde, who conducted the study because criminal gang activity and the prosecution thereof under Poca is underdeveloped and under-researched.

"It became clear that, although criminal gang activity contributes disproportionately to both national and provincial [Western Cape] crime statistics, the study of criminal gang activity from a legal perspective was completely neglected and was deserving of a comprehensive investigation as to why our antigang legislation is not working and what potentially could be done to remedy the situation."

Having done a comprehensive analysis of the history of Poca and each crime and its punishment under the act, Van der Linde found that it is substantially similar to the common law and equally ineffective when it comes to dealing with gang activity.

He points out that the act was supposed to supplement the common law, which failed to disrupt the way gangs operate.

"Save for maybe the crime of gang recruitment, Poca doesn’t add much to the arsenal of common law crimes such as conspiracy, incitement, public violence and the common purpose doctrine that could address group-based criminality. The crimes under Poca are basically similar to the common-law crimes."

Van der Linde says evidence of the ineffectiveness of the law is supported by the increasing number of gang-related murders. About 21.6% of all murders committed in the Western Cape in the 2017/18 financial year were attributed to gangs.

"Another problem is that the punishments for gang members are also extremely weak – ranging from three to eight years (which can be increased by aggravating factors such as committing gang-related crimes close to schools) or the alternative of a fine."

Van der Linde points out that there are also several other issues with the law that make its application potentially unfair to people accused of offences under chapter 4 of Poca, which specifically deals with criminal gang activity.

"The law is too broad and uncertain due to potential interpretation(s) of 'criminal gang' and 'criminal gang activity'. These are 'open' definitions and a court does not necessarily have to follow them."

Consequently, he said, "a court can find persons guilty under Poca even though they do not strictly comply as such under the text of the act. This is unfair to people who may potentially fall under the scope of Poca as they do not adequately have fair warning as to what type of conduct would constitute illegal behaviour."

Van der Linde adds that that one of the sentence enhancements or aggravating factors under Poca is unconstitutional and violates the freedom of association.

"Section 10(3) makes it possible to increase a person’s sentence for any crime merely because he or she is a gang member. A gang member who is found guilty of a speeding offence can therefore face increased punishment if he or she is a gang member.

"It is arbitrary and irrational to increase someone’s sentence on this basis. Section 10(3) should be restricted to gang-related offences. It must be amended so that it can only apply to gang members (or active participants) who committed offences ‘for the benefit of, at the direction of, or in association with any criminal gang’.”

Gang leaders

Van der Linde points to several strategies from other countries and international law that could be incorporated into our legal system – or in some instances would only require a novel application of the common law.

Drawing from international criminal law, he offers alternative mechanisms for a new mode of responsibility for gang leaders in holding them liable for crimes committed by their subordinates.

"Under international criminal law, leaders of military and civil organisations can be held responsible for the actions of their subordinates as well as where such persons have committed atrocities. Similar modes of liability can easily be introduced into South African law."

"The common law imposes, for example, criminal liability for omissions such as creating a dangerous situation and not preventing harm from ensuing. Gang leaders could be held responsible for creating a dangerous situation (a gang) and quite obviously not preventing harm from ensuing."

According to Van der Linde this would make it easier for the state to prove that gang leaders gave instructions to commit certain crimes.

"Where a gang member commits a crime on behalf of a superior, the superior could be held liable as if he or she committed the crime. These common-law methods are much simpler to prove than the arduous statutory scheme under Poca."

He says his study provides a comprehensive interpretive guide to the text of Poca and makes several substantive and necessary suggestions for changes to the text.

"Amendments to the definitions of 'criminal gang' and 'gang activity' are formulated, making it compulsory for courts not to deviate from it."

"Chapter 4 of Poca heavily relies on previous convictions and hearsay – which are normally impermissible forms of evidence. The inclusion thereof could render a trial unfair if the state does not rely on the appropriate legislation for its inclusion."

Van der Linde suggests a provision similar to that in Chapter 2 of Poca, which makes the inclusion of these forms of evidence permissible.

He says the act's textual, institutional and constitutional shortcomings must be addressed to more effectively deal with criminal gang activity, but also to protect the accused’s constitutional right to a fair trial.

Van der Linde is critical of the newly established antigang unit, saying it is merely a plaster and a temporary solution to a bigger socioeconomic problem. "It was reported that up to 85% of police stations are understaffed and gang hot spots are disproportionately under-policed compared with areas such as Stellenbosch with a lower crime rate."

He urges academics, community leaders and civil society to do more to motivate further legislative intervention.

"The increase in the number of gang-related incidents (in particular murders) shows there is a constitutional failure by the state to protect its citizens from all forms of violence."

Van der Linde says the three branches of government (executive, legislative and the judiciary) will benefit the most from his study.

"The inhabitants of the Cape Flats will ultimately benefit if my suggestions are to be implemented."

He plans to present his findings to the legislature and the law reform commission.

• Article by Dr Alec Basson, science writer at Stellenbosch University