Problematic issues pertaining to racketeering offences in the prevention of organised Crime Act 121 of 1998

Abstract

Organised crime is a worldwide phenomenon, which also affects South Africa. In many instances organised crime is transnational. Consequently, South Africa had to develop legislation in order adequately to deal with organised syndicates and associations of criminals, and bring its legal system in line with international standards aimed at combating transnational organised crime. In the United States of America organised crime, and any conduct that meets a “pattern of racketeering”, are prosecuted under the Racketeering Influenced and Corrupt Organizations Act 18 USCA 1961-1968. This legislation played a significant role when racketeering offences were formulated in the South African Act. The Prevention of Organised Crime Act 121 of 1998 inter alia includes aspects such as racketeering, money laundering, gangs and the civil recovery of property. It also deals with conduct of individual wrongdoing and crimes that cannot be categorised as organised crime. This study focuses on problematic aspects with regard to racketeering offences in Chapter 2 of the Act that are probably going to labour the Constitutional Court and/or the Supreme Court of Appeal in the near future. One of the problematic aspects of Chapter 2 of the Act is that it does not include a definition of “racketeering”. It only describes the different types of conduct which may lead to a successful prosecution on racketeering offences. The legislation also introduces new concepts, such as “enterprise” and “pattern of racketeering activity”. Therefore, in order to determine whether the State will succeed in prosecuting an accused with racketeering offences, it must be established what is meant by the terms of being part of an “enterprise” and what a “pattern of racketeering activity” entails. Also of importance is the requirement that two or more offences referred to in Schedule 1 of the Act must have been committed for a successful prosecution. Although the South African courts have considered this aspect there is still room for discussion as to whether an accused must have previously been convicted of two or more criminal offences referred to in Schedule 1 for a conviction on racketeering offences, or whether the commission of one offence will suffice. The offence of racketeering does not only consist of the commission of an act in itself. The membership or association with a legal or illegal organisation also plays a vital role to determine culpability. This study looks at the possible role (s) that an accused may fulfil when he is involved as a member of an organisation involved with racketeering offences. Another aspect that needs to be clarified is the requirement relating to fault. The element of unlawfulness is also problematic when an accused did not foresee the possibility of unlawfulness of his actions. Close consideration is given to the requirements for culpability and whether mere negligence on the part of a role player is sufficient as a form of mens rea for a successful prosecution or not. The element of unlawfulness is also discussed. Ordinary citizens may raise the issue that they did not know that the commission of two or more offences mentioned in Schedule 1, may lead to the prosecution of a racketeering offence. Therefore, it is crucial to determine whether a role player must have the necessary knowledge of unlawfulness to commit the racketeering offences. The fact that the Act has been introduced in the South African legal system to criminalise racketeering offences does not exclude the scenario that each case must be decided on its own particular set of facts. It is clear from the research presented that there must be one or other link between the accused person, the “enterprise” and the “pattern of racketeering activities” for a successful prosecution on a racketeering offence. This study seeks to provide assistance to legal practitioners when their clients are faced with prosecution on a racketeering offence. The study also discusses the real risk of a possible duplication of convictions.