Ted Leggett
When the Prevention of Organised Crime Act went into full effect at the end of last month, South Africa quietly entered into a whole new era in law enforcement, for better or worse.
The Act gives criminal justice officials some very powerful weapons with which to wage their war on crime, but like any weapons, they are only as good as the hands that wield them. In the wrong hands, a powerful weapon is cause for concern.
In this war, the government has to deal with two types of criminals: the deterrables and the not-so-deterrables. In the latter class fall all those poor buggers who engage in acts of violence because there is something not quite right upstairs. They are not fearless, but the things they fear are not the same things you and I fear. Fines, imprisonment and even the death penalty do not seem to weigh heavily in this group’s utility calculus. They are motivated by a world-view foreign to most of us.
The new Act is aimed at the former group, rather, at those crooks who are deterrable. These are people who are motivated by the same thing that motivates most of us -money. Take away the profit, and crime quickly loses its attraction. The Act allows the government to do just that: to take away the profit from the crooks. Even before it proves that they are crooks. Now, that’s powerful.
Specifically, it provides for seizure of property by the state where a “reasonable suspicion” exists that it constitutes the proceeds of crime and the owner is unable to provide a satisfactory explanation of its origin. This is a civil action by the state, not a criminal one, and so reduced standards of evidence apply.
While it may still be necessary to prove a man guilty beyond a reasonable doubt to convict him of a crime, the state need only prove that it is reasonable to suspect he is crooked to take his property. This makes the job of the police much easier.
The Act also makes it a separate crime to directly or indirectly participate in or assist a criminal organisation or gang, essentially establishing “guilt by association” as law. To prove involvement, evidence that would otherwise be inadmissible may be admitted, as long as it does not render the trial “unfair” in the eyes of the judge. This also makes the job of the police much easier.
A third provision is aimed at money- laundering, making it illegal to receive money which one “knows or ought reasonably to have known” is the proceeds of “racketeering” activity.
This should make it difficult for “known criminals” to buy anything at all. It is also now incumbent on citizens to report any suspicions they might have about such shady dealings, or face the wrath of the law.
In these provisions, the Act sounds very similar to a statute from the United States, the Racketeer Influenced and Corrupt Organisations (Rico) Act. Rico is also a very powerful piece of legislation, which revolutionised the way Americans see law enforcement. But the revolution it brought about is far from uncontroversial.
Rico was designed to attack Mafia-style organised crime, but has been used against anti-abortion and anti-obscenity protesters, video-store and adult-bookshop owners, Wall Street investment firms, and deadbeat ex- husbands. Its broad wording, paralleled in our own Act, have made it applicable to virtually any situation where an “organisation” is used to commit more than one criminal act.
The forfeiture of property provisions of Rico have also generated much debate. Critics point out that 80% of the forfeiture cases in the US never result in the conviction of anyone for any crime, and that blacks owning expensive property are targeted because they fit the “profile” of an organised crime member.
More insidious is the fact that the assets seized go back to the police. Additional officers are hired from these funds, and these people have a strong interest in continued forfeitures in order to keep their jobs.
While this is a great work incentive, it undermines the detachment and fairness that is required for just law enforcement. In South Africa, this direct enrichment is mediated by a committee of ministers, but it remains likely that the more the police seize, the more funds will be made available to them.
In any case, the gloves are off in South Africa. The justice system and the police now face few procedural impediments in their assault on criminal organisations.
They can arrest those slippery felons, who everyone knows have been making millions off the misery of others, and return the money to the communities they once victimised.
They can equip themselves with tools and funds they seize from the bad guys, evening the odds a little. They can put away gang members, – including members of “gangs” like People against Gangsterism and Drugs (Pagad) – for extended periods, whatever the charge they finally pick them up on.
Whether this Act is a gateway to a crime-free society or a passage to oppression and corruption hinges on one simple factor- the integrity of the criminal justice system. We must trust that the tremendous powers that this legislation places in the hands of the state will not be abused.
Under the existing wording, it is possible that certain political parties could be classed as “criminal gangs”, and their members persecuted. Whether you should cheer or mourn the passage of this Act depends on how highly you rate the capabilities and fairness of the government.
Ted Leggett is a researcher at the Centre for Social and Development Studies at the University of Natal