Authored By: Lesego Kgosana
University of South Africa
ABSTRACT
The term “organised crime” has brought about confusion as the definition is very unclear and vague.
The distinctive analysis of organised crime and other forms of crime by the Union Nations creates a far more confusion of the term “organised crime”.
Instead of furnishing us with what organised crime is, Interpol and the South African Police Service provides us with examples related to organised crimes.
The objective of this research study is to present a distinctive meaning of Organised Crimes provided by the Prevention of Organised Crime Act, the South African Police Act and the Union Nations, identifying the causes of confusion and providing an interpretation to reduce the uncertainty of the term “organised crime” by establishing elements and characteristics that amount to the common purpose of the term.
1 Introduction
Defining the term “organised crime” will always be a perplexing and obscure task to accomplish. With a variety of definitions, it is however, still very unclear and unsatisfactory. The Prevention of Organised Crime Act 121 of 1998 as the primary source of my research, provides us with a vague definition; as it is “not defined in the Act and is used on only one occasion but in circumstances in which its precise meaning is not critical”1. The definition, interpretation and understanding of the term “organised crime” has had structural bodies of the world, international and national organisations debating on the concept and nature of the term. The court rather used the term to describe offences that have organizational features of some kind that distinguish them from individual criminal wrongdoing.2
Organised crime as broadly defined as it is on a variety of elements established, has continued to be a threat to the authority of the country and the safety and security of the South African citizens.3 According to the report on the Global Organised Crime Index, published by the Global Initiative Against Transnational Organised Crime (GI-TOC), South Africa had the highest ranking among Southern African nations. The index measures the scope, scale and impact of organised crime, shows the risks and the country’s ability to deal with the issue at hand.4
1.1 Problem Statement
The nature and interpretation of organised crime by an analysis of elements and characteristics of various material sources.
1.2 Research Question
To what extent does a crime amount to an organised crime?
1.3 Hypothesis
Organised crime is defined by utilizing the elements and characteristics associated with the definition.
1.4 Research Methodology
The research elucidates the term ‘organised crime’ and provides elements used to define organised crime and characteristics associated with organised crime.
The elements and characteristics are utilized to determine whether or not a crime is an organised crime.
Based on primary (legislation and case law) and secondary (theses, internet sources and journal articles) material sources on organised crimes, a conceptual and descriptive research methodology was followed.
2 The characteristics of organised crime
Six characteristics were listed in the 1994 Naples Political Declaration and Global Action Organised Transnational Crime:
- Group organisation committing the crime;
- Hierarchical links or personal relatives;
- Violence, intimidation and corruption used to earn the profits or material;
- The laundering of illicit proceeds to execute criminal activities;
- A potential expansion for new business beyond the national boarders;
- Working together with other organised transnational criminal groups.
However, Von Lampe5identifies the characteristics of OC by grouping the characteristics in three approaches namely, organisation, activity and system approach. He explains that the organisation approach focuses on the organisational structure of the group; the activity group focuses on the types of crimes committed by the group; and that the system approach is a platform where criminals can interact with legitimate organisations or businesses to form a corrupt socio-political system.
Cressey6defines Von Lampe’s “organisation approach” as a structure that is made up of the corruptor, the coruptee and the enforcer positions. He further maintains that the organisational structure is essential for a criminal group to be considered as an organised crime group and formulates his definition of organised crime on these positions.7 He provides that organised crime is any crime committed by a person in a position designed for the commission of a crime, occupying in an established division of labour that also includes at least one position for a corruptor, corruptee and an enforcer. With this definition, he established a link between organised crime and corruption.
Albanese8also attempted to identifying the characteristics of organised crime. He mentions that mentions that an organised crime should have a continued organised hierarchy, rational profit through crime, corruption to maintain immunity, restricted membership, non-ideology, use of force, intimidation or threat, specialisation, public demands for services, code of secrecy and extensive planning. Albini9 mentioned a similar characteristics as Albanese10, he points out that secrecy as his first characteristics, followed by the use of violence and protection.
Roth11 and Maltz had similar characteristics namely, corruption, violence, structure, continuity, lack of ideology, structure, rules and regulations, multiple enterprises, codes of conduct and sophistication.
3 The elements of organised crime
In differentiating between “crime that is organised” and “organised crime”, Abadinsky state that instrumental violence is required for a crime to amount to an organised crime. However, if “instrumental violence” is absent as a requirement, crime is merely organised. 12 Morrison provides that crime is an act or omission that causes harm leading to a penal sanction in accordance with the constitutionally valid procedures of the state.
The definition of crime is always broken down into elements to make it easier and clearer to the readier as to what would constitute or be proven to be a crime. The burden of proof would rest on the state in order to secure a conviction. Elements of a crime are defined as an unlawful conduct, criminal capacity and fault.13 The same interpretation should apply to the term “organised crime”. The elements of OC should be broken down to make it easier for the definition to be clear and satisfactory.
Lebeya14 identifies eight elements that contribute to the definition of organised crime: 1. Organised Criminal Group;
- Serious crime;
- Pattern of racketeering activity;
- An act or omission;
- Culpability;
- Unlawfulness;
- Financial benefit or other material benefit; and
- Penal provision
4 Discussion of POCA
The Prevention of Organised Crimes Act 121 of 1998 was enacted to introduce measures to prevent and prohibit organised crimes, criminal gang activities and money laundering, the act prohibits activities relating to racketeering activities and criminalise gang related activities. The preamble of the Act states that there is a rapid increase of organised crimes, money laundering and criminal gang activities both nationally and internationally and that South African common law together with the statutory law failed to deal with these crimes and keep pace with the international measures kept in place to deal effectively with the above mentioned crimes and criminal gang activities. It has also been known that proving direct involvement of the organised crime leaders or gang leaders in particular cases has been close to an impossible mission to complete, as they do not perform the actual crimes themselves. It is stated in the Memorandum to Bill 118 of 1998 that a special task team appointed to investigate the feasibility of legislative measures recommended the Bill to enable law enforcement agencies to deal with organised crimes and criminal gang activities.
Prevention of Organised Crimes Act 121 of 1998 s(1)(1)(iv) interprets criminal gang as any formal or informal ongoing organisation, association, or group of three or more persons, which has as one of its activities the commission of one or more criminal offences, which has an identifiable name or identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.
As stipulated in POCA, pattern of criminal gang activity includes ‘the commission of two or more criminal offences referred to in Schedule 1: Provided that at least one of those offences occurred after the date of commencement of 5 Chapter 41 and the last of those offences occurred within three years after a prior offence and the offences were committed:-
a) on separate occasions; or
b) on the same occasion, by two or more persons who are members of, or belong to, the same criminal gang’
However, the Act distinguishes between what constitutes a pattern of criminal gang activities and what constitutes a pattern of racketeering. A pattern of criminal gang activity does not require a planned, ongoing, continuous or repeated participation or involvement of a schedule 1 offence as required by a pattern of racketeering. This definition sets its main focus on the enterprise and object of the crime rather than the perpetrators who committed the act. Enterprise in this instance is the individuals or juristic persons associated in fact. The relationship between the racketeering activity and the enterprise is proven by the evidence of an ongoing and continuous organisation.
6 Position of the Union Nations Office on Drugs and Crime on the definition of organised crime
The 2000 United Nation Convention Against Transnational Organised Crime gives us a more clear and concise definition to the term “organised criminal group”. It is defined as a structured group of two or more people existing for a period of time and performing criminal acts of committing one or more serious crimes established in accordance with the Convention for the benefit of financial gain or other material gain.15 For the purpose of the Convention, serious crimes are crimes punishable by a maximum sanction of at least four years. Structured group in this context is defined in a negative manner as one that does not need a formal hierarchy of its membership. The definition by the Convention makes it broad as it includes loosely affiliated groups without any formal roles for its members.16
Transnational organised crimes are planned and executed and have an effect across national borders. An offence is transnationally if it is committed in more than one state or committed in one state but planned, prepared and controlled in another state or involves an organised criminal group that participates in criminal activities in more than one state. This type of organised crime involves criminals, terrorists and their facilitators operating in stable political environments.
9 Position of the South African Police Service on organised crime
Organised crime markets identified by the National Prosecution Authority include illicit drugs and firearms, human trafficking, kidnapping, cash-in transit heists, illegal mining and cybercrimes. However, Organised crime did not become part of the South African policing vocabulary until 1991.
The South African Police Service Act 68 of 1995 gives us a clear general definition. Rather, it provides us with circumstances whereby acts or offences may be considered as organised crimes. Section 16 Of the SAPS Act states that an organised crime involves a criminal conduct by a person or a group of people or syndicate acting in an organised manner which could result in a huge financial gain for that particular person, group or syndicate involved. Anyone in respect of rough precious metals and unpolished diamonds; in respect of trading of endangered species is also committing an act of an organised crime.
10 Conclusion
The definitions makes it clear that the size of an organised criminal group can either be small or on a large scale, it also does not have to exist for a long period of time. However, the variety of definitions has made it confusing to understand and interpret the term organised crime. POCA, as the legislation that was enacted to combat on organised crime, was also established to deal with other crimes too, such as racketeering and money laundering. Elements established to define the term “organised crime” are the seriousness of the crimes committed by groups or individuals and their profit-driven nature.
Lunde17 suggest that attempts by agencies, law enforcements, scholars and organisations to provide a definition for organised crime has been contradicted as to the activities performed by their nature constantly responding to the exploiting and money-making opportunities presented. This shows that the agencies and scholars had different views which led to different understandings of the term.
With that being said, organised involves a number of individuals working together to perform an unlawful activity. The group can either be benefitting financially or materially.
BIBLIOGRAPHY
Books
Abadinsky Organised Crime
Abadinsky H, Organised Crime (Wadsworth 2013)
Albenese, Organised Crime
Albenese J, Organised Crime (LexisNexi Anderson Publishing New Jersey,2014)
Albert, Organised Crime and Proceeds of Crime Law in South Africa
Albert K, Organised Crime and Proceeds of Crime Law in South Africa (2nd edn, LexisNexis 2013)
Albini, The American Mafia
Albini J, The American Mafia (Appleton-Century-Crofts,1971)
Cressey, Theft of the Nation: The Structure and Operations of Organised Crime in America
Cressey D, Theft of the Nation: The Structure and Operations of Organised Crime in America (1st edn, Harper & Row New York 1969)
Roth, Organized Crime
Roth M, Organized Crime (Prentice Hall, Upper Saddle River 2010)
Kemp, Criminal Law: A Practical Guide
Kemp G, Criminal Law: A Practical Guide (South Africa, OUP Southern Africa, 2013)
Paul, Organized Crime: Am Inside Guide to the World’s most Successful Industry
Paul L, Organized Crime: An Inside Guide to the World’s most Successful Industry (DK Publishing London 2004)
Cases
Dawood and Another v Minister of Home Affairs and Others 2000 (3) SA National Director of Public Prosecutions v Vermaak 2008 1 SACR 157 (SCA)
Internet Sources
Nicole McCain, ‘South Africa ranks high on global index measuring organised crime activity’ [2021] News24, www.news24.com/news24/SouthAfrica/News/south-africa-ranks high-on-global-index-measuring-organised-crime-activity-20210929 accessed 8 April 2024
Union Nations Office on Drugs and Crime, ‘Money Laundering’ <
https://www.unodc.org/unodc/en/money-laundering/overview.html> accessed 9 April 2024.
United Nations Convention Against Transnational Organized Crime And The Protocols Thereto [2000] United Nations Office On Drugs And Crime
https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCe book-e.pdf> accessed 3 April 2024
Journal Article
Von Lampe, ‘Organised Crime: Analysing Activities, Criminal Structures, and Extra-legal Governance’
Von Lampe K, ‘Organised Crime: Analysing Activities, Criminal Structures, and Extra-legal Governance’ [2016] Sage California 102
South African Police Service, ‘Strategic Plan’
South African Police Service, ‘Strategic Plan South African Police Service 2020 – 2025’ (2020) 11
Legislation
Financial Intelligence Centre Act 38 of 2001
Prevention of Organised Crime Act 121 of 1998
Protection of Constitutional Democracy Against Terrorism and Related Activities Act 33 of 2004
Thesis
Aslett, ‘Combating organised crime in South Africa’
Aslett D, ‘Combating organised crime in South Africa’ (LLD thesis, University of North West 2018)
Lebeya, ‘Defining Organised Crime: A Comparative Analysis’
Lebeya SG, ‘Defining Organised Crime: A Comparative Analysis (LLD thesis, University of South Africa 2012)
1 National Director of Public Prosecutions v Vermaak 2008 1 SACR 157 (SCA) 3.
2 Vermaak (SCA) [4].
3South African Police Service, ‘Strategic Plan South African Police Service 2020 – 2025’ (2020) 11.
4 Nicole McCain, ‘South Africa ranks high on global index measuring organised crime activity’ (News24, 29 September 2021) www.news24.com/news24/SouthAfrica/News/south-africa-ranks-high-on-global index-measuring-organised-crime-activity-20210929 accessed 8 April 2024.
5 K Von Lampe, ‘Organised Crime: Analysing Activities, Criminal Structures, and Extra-legal Governance’ [2016] Sage California 102.
6 Donald Cressey, ‘Theft of the Nation; The Structure and Operations of Organised Crime in America’ [2017] Harper & Row New York 1969, 320.
7 Aslett, ‘Combating organised crime in South Africa’ 38.
8Jay Albenese, Organised Crime (LexisNexi Anderson Publishing New Jersey,2014) 122.
9Joseph Albini, The American Mafia (Appleton-Century-Crofts,1971) 39.
10 Albenese, Organised Crime (LexisNexi Anderson Publishing New Jersey,2014).
11 Mitchel Roth, Organized Crime (Prentice Hall, Upper Saddle River 2010)
12 Abadinsky ‘Organised Crime’.
13 Gerhard Kemp and Others, Criminal Law in South Africa (Oxford University Press Southern Africa, 2012) 30.
14 Seswantsho Godfrey Lebeya, ‘Defining Organised Crime: A Comparative Analysis’ (LLD thesis, University of South Africa 2012)
15 Art. 2. United Nations Convention Against Transnational Organized Crime And The Protocols Thereto [2000] United Nations Office On Drugs And Crime para a https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf> accessed 3 April 2024
16 Art. 2. United Nations Convention Against Transnational Organized Crime And The Protocols Thereto [2000] United Nations Office On Drugs And Crime (United Nations Office on Drugs and Crime 2018
17 Paul Lunde, Organized Crime: An Inside Guide to the World’s most Successful Industry (DK Publishing London 2004) 8.
