Justice Committee: Proposed Amendments: 20/10/98
B118-98 AMENDMENTS TO BE CONSIDERED : 20/10/98
CLAUSE 1
1. Alternatives to definition of "criminal gang":
OPTION 1 "criminal gang" means any ongoing organisation, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the Commission of one or more of the criminal acts listed in Schedule 2, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity";
NOTE: If the above mentioned definition is accepted, the following definition of "pattern of criminal gang activity" is proposed:
"pattern of criminal gang activity" means the commission, attempted commission of or conspiracy or solicitation to commit one or more common law or statutory offences listed in Schedule 2: Provided that at least one of those offences occurred after the date of commencement of Chapter 4 and the last of those offences occurred within three years after a prior offence, and the offences are committed on separate occasions, or by two or more persons;
NOTE: No reason is given by the South African Police Service for the omission of "temporary" in the definition of "criminal gang". The word "temporary" does not appear in the definition "criminal street gang" of the "Criminal Street Gang Prevention Act of 1996" of Florida or the "California Street Terrorism Enforcement and Prevention Act of 1988". The words "or temporary" were inserted on recommendation of the Task Team, because the Task Team was of the view that it is possible to form a temporary gang to commit certain specific acts.
OPTION 2 ' "criminal gang" means a formal or informal organisation, association or group that is as such involved in the commission of criminal activities through individual or collective activities of its members;'.
2. Alternative to definition of "enterprise":
' "enterprise" means any trade, business, profession or other activity of a continuing nature, whether or not carried on for the purposes of deriving a profit and includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact, although not a legal entity, which is engaged in, or the activities of which affect, economic relations within or outside the Republic;'.
3. Alternative to definition of "National Director":
OPTION 1
' "National Director" means the National Director of Public Prosecutions appointed in terms of section 179(1)(a) of the Constitution and, except for the provisions of section 2(3), includes a Deputy National Director, and a Deputy Director referred to in section 1 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998);'.
OPTION 2 "National Director" means the National Director of Public Prosecutions appointed in terms of section 179(1)(a) of the Constitution and for the purposes of—
(a) sections 2(3) ... includes a Deputy National Director of Public Prosecutions, a Director of Public Prosecutions an Investigating Director Public Prosecutions and a Special Director of Public Prosecutions referred to section 1 of the National Prosecution Authority Act, 1998 (Act No. 32 of 1998), and authorised thereto in writing by the National Director in a specific case or in general;
(b) all other relevant provisions of this Act, includes any functionary referred to in section 1 of the said Act which is under the control of the National Director and authorised thereto by the National Director in a specific case or in general;".
4. Alternative to definition of "pattern of illegal conduct":
' "pattern of illegal conduct", means the continuous or repeated participation or involvement in illegal conduct, including at least two acts of illegal conduct not more than 10 years apart (excluding any period of imprisonment);'.
CLAUSE 2 1. Alternatives to paragraph (a) of subsection (1):
OPTION 1 (1) Any person who—
(a) (i) receives or retains; or
(ii) on behalf of any enterprise receives or retains,
any property derived, directly or indirectly, from a pattern of illegal conduct and who knows or ought reasonably to have known that such property is so derived;
(b) any person who knows or ought reasonably to have known that any property is derived, directly or indirectly, from a pattern of illegal conduct, uses or invests, directly or indirectly, any part of such property or the proceeds of such property in acquisition of any interest in, or the establishment or operation of, any enterprise;
OPTION 2 (1) Any person who—
(a) receives or retains any property derived, directly or indirectly, from a pattern of illegal conduct and who knows or ought reasonably to have known that such property is so derived;
(b) as in option 1 above;
(c) acquires or maintains, directly or indirectly, any interest in or control of any enterprise and who knows or ought reasonably to have known that such enterprise is involved in a pattern of illegal conduct;
2. Alternative to paragraph (c):
(c) whilst employed by or associated with any enterprise, or whilst managing such enterprise, conducts or participates, directly or indirectly, in the conduct of such enterprises' affairs through a pattern of illegal conduct;
3. Alternative to paragraph (e) of subsection (1):
(e) conspires or attempts to violate any of the provisions of paragraphs (b), (c) or (d).
4. Alternative to clause 2(3)(a):
"(a) A person shall only be charged [of] with committing an offence contemplated in subsection
(1) if [authorised thereto] such prosecution is authorised in writing by the National Director or a person authorised thereto by him or her.".
5. Alternative to clause 2(3)(b):
"(b) The National Director shall only authorise a prosecution referred to in paragraph (a) if he or she is satisfied that a reasonable suspicion exists (that these is prima facie evidence) that an offence contemplated in subsection (1) (an organised crime) has been committed."
CLAUSE 3 1. Alternative to clause 3:
"3. Any person convicted of an offence referred to in section 2(1) shall be liable to a fine not exceeding R10million, or to imprisonment [not exceeding 30 years] up to a period of life imprisonment.".
CLAUSE 12
1. Alternative to clause 12:
12. (1) Any person who—
(a) (i) actively participates in any criminal gang;
(ii) knows that the members of such gang is engaged in or have engaged in a pattern of criminal gang activity; and
(b) threatens, to commit, bring about or perform any criminal conduct by a criminal gang;
(c) incites, commands, aids advises encourages or procures any person, who is a member of a criminal gang, to commit, bring about or perform any criminal conduct;
(d) intentionally causes, encourages, solicits or recruits another person to join a criminal gang that requires as a condition of membership or continued membership the commission of any offence, is guilty of an offence.
2. Alternatives to subclauses (2) and (3):
[(2) Nothing in this section shall be construed to limit prosecution under any other provision of the law.
(3) No person shall be convicted of a contravention of subsection (1) based upon speech alone, except where it is shown that the speech itself threatened violence against a specific person, that the accused person had the apparent ability to carry out the threat, and that physical harm was eminently likely to occur the occurrence of physical harm was a strong likelihood.]
OPTION 2
(2) Nothing in this section shall be construed to limit prosecution under any other provision of the law.
(3) No person shall be convicted of a contravention of subsection (1) based upon speech alone, except where it is shown that the speech itself threatened violence against [a specific] any person, that the accused person himself or herself, or a criminal gang of whether he or she is a member, had the apparent ability to carry out the threat, and that the occurrence of physical harm was a strong likelihood.".