Browsing by Author "van der Linde, DC"
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- ItemCriminal gang activities: A critical and comparative analysis of the statutory framework under South African criminal law(Stellenbosch : Stellenbosch University, 2018-12) van der Linde, DC; Kemp, Gerhard; Stellenbosch University. Faculty of Law. Dept. of Public Law.ENGLISH ABSTRACT: Criminal gang activity presents a substantial threat to the lives of, in particular, the Cape Flats community in the Western Cape. This dissertation investigates the legislative response in holding gang members responsible, namely Chapter 4 the Prevention of Organised Crime Act 121 of 1998 (“POCA”). POCA was promulgated in order to better address a trinity of crimes, namely money laundering, racketeering and criminal gang activity (generically known as “organised crime”). Despite significant strides in combating money laundering and racketeering, the same cannot be said for criminal gang activity. In fact, the incidence of gangrelated crimes has increased since the promulgation of the Act. During the 2017/2018 financial year, for example, more than one in every five murders (21,6%) committed in the Western Cape was gang-related. This dissertation opens by investigating the proliferation of criminal gangs in the Cape Flats communities as well as the need for additional legislation in dealing with gang activity, rather than relying on existing means. The main reason for the promulgation of POCA was said to be the ineffective common law modalities used in dealing with group-based crime, namely the common purpose doctrine (in particular), conspiracy, incitement and public violence. These modalities were therefore scrutinised for two reasons. Firstly: to determine to what extent (and why) the common law inadequately addressed gang activity. Secondly: if the common law is still useful and how it can be developed to more effectively deal with gang activity. A critical and comparative analysis of the threshold requirements (under Chapter 1 of POCA), specific crimes, as well as related sentencing for gang-related activity follows. Foreign and international law relating to organised crime is consulted for interpretive guidance. This analysis must be read together with the analysis of Chapters 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 the State’s constitutional duty to protect its inhabitants. These analyses cumulatively elucidate the interpretive, substantive, institutional and constitutional issues with Chapters 1 and 4 of POCA. It is ultimately found that Chapter 4 of POCA is both weak and 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 conclude that a statutory manifestation thereof is equally as ineffective. Based on this argument, immediate statutory amendment, supplementation or replacement of both Chapters 1 and 4 of POCA is called for. In this regard, alternative legal mechanisms, as well as foreign and international law is consulted. International law is consulted in particular to address the further punishment of gang leaders which is dealt with inadequately under POCA. This dissertation concludes as well as making substantive suggestions for amendments to the text of POCA as well as a new crime addressing the liability of gang leaders.