Attorney-General: Free State
OFFICE OF THE ATTORNEY-GENERAL
18 August 1998
ENQUIRIES: ADV BECKER
PREVENTION OF ORGANISED CRIME BILL, 1998
1.The Minister of Justice has stated the aim of the above-mentioned Act to be (inter alia) as follows:
"A frustration we experience daily in our justice system is that it is difficult to build sufficient evidence to convict gang bosses, since they usually work through others and do not get their hands dirty.
The Prevention of Organised Crime Bill tries to remedy the situation. From international examples we have chosen the most drastic and sophisticated weapons to arm our prosecution and judiciary in the war against organised crime. You cannot fight it with popguns."
Min D Omar: Quoted from a letter to the Editor: Sunday Times 9 August 1998
2. There can be no question that the stated problem of organised crime and the need for drastic measures to address the problem is a very vexing problem facing the criminal justice system at present.
3. It is believed that the Prevention of Organised Crime Bill, 1998, will go some way in addressing the problem.
4.1 Due to time constraints, I have not been afforded enough time to properly study the proposed legislation and to apply my mind to the problems one might encounter in its application. The Bill is complex in its composition and far - reaching in its implications, and one would have appreciated adequate time to respond properly;
4.2 It is believed that the proper application and the usefulness of the Bill is dependent upon adequately trained and experienced personnel, especially due to the Bill's complexity and deviation form, existing procedures and evidentiary rules.
5. Minister Omar states in the article quoted supra that the National Director of Prosecutions is presently setting up the necessary infra-structure to ensure the proper application of the Bill. If the proper infra-structure is put in place (and here one also refers specifically to members of the SA Police Service who will investigate these matters) the difficulties which might be encountered when applying the act will be mere experience - enhancing exercises, but the act will, in my opinion, achieve what it sets out to do. I am therefore in full support of its implementation.
6. Given the time constraints, a cursory examination of the act raises questions with regard to various aspects. A thorough study of the Act might show that they have, in fact, been addressed or can be dealt with adequately by existing legal procedures. They are nonetheless raised in an effort to enhance the debate which will be raised. Questions which do spring to mind, however, are the following:
6.1 Section 1(iv) "Criminal gang member":
(i) How wise is it to rely on informants in this regard, be they "documented (as) reliable" or not?
One is aware that, at present, undertakings are given to informants that their identities, etc. will be protected into perpetuity, and that the SAPS adheres to this undertaking as far as is possible.
If a court may rely on evidence by an informant, to what extent will the informant be protected against exposure when this evidence is challenged by the accused/respondent?
(ii) Why has a list been compiled two or more factors of which must be proved before deciding whether a person is a member of a criminal gang? Would (mere) prima facie evidence to this effect not be adequate? One (reliable) informer's evidence may upon occasion surely bear more weight than any other number of factors, if tested and found to be prima facie reliable.
(iii) Would one of the other factors listed in sections 1(1)(iv) (a), (b), (c), (d), (f), or (g) be adequate to corroborate this evidence of an informant "of previously untested reliability" (section 1(1)(iv)(e)) and even if so, must the court then be furnished with at least three (3)of the factors? (In other words, when section 1(1)(iv)(e) is applied, must the corroborating evidence be derived from something else than the evidence mentioned in paragraphs (a), (b), (c), (d), (f) or (g) and if not, are two or three factors required?)
6.2 Section 4 : (Criminal Forfeiture) Whereas a forfeiture in terms of sections 21 and 22 read with section 18(6), is stayed for a period of 30 days pending appeal procedures, there is no similar provision with regard to a forfeiture in terms of section 4, nor does there appear to be any discretion conferred on the Courts to grant such a stay, as is done in terms of sections 307 - 308 A of the Criminal Procedure Act, 1977 with regard to "normal" sentences.
6.3 Section 5 : (Notice of suspicion concerning property) It is not clear what the purpose of this section is. If it is meant to precede the application for a restraining order in terms of section 6 or a forfeiture order in terms of section 18 it does not make this clear. The nature of targeted property is basically the same. Yet there is no indication of what is to become of said property once a notice has been issued in terms of section 5(3).
6.4 Section 25 (Privilege): The provisions of section 25 appear to make enormous inroads into various fundamental rights of the Constitution. Their constitutionality will however no doubt soon be adjudicated upon by the Courts once the Act is in operation.
6.5 Section 28 (Sharing of information)
It is believed that this section provides for what Minister Omar has indicated to be the means by which " … the justice system (is allowed) greater access to information held by the Receiver of Revenue … "
Whereas the section provides for the notificating of the Commissioner of Revenue of an investigation in terms of the proposed Bill "....with a view to mutual co-operation and the sharing of information", it places no obligation on the Commissioner to reciprocate with such information as he may have in assisting the investigation. The Receiver of Revenue is notoriously difficult to persuade to divulge information at the best of times and one feels that such an obligation should be clearly stated if that is the aim of this section.
In conclusion I once again emphasise that the Bill can only achieve what it sets out to do if adequately trained and experienced personnel, prosecutors as well as police officials, are available to enforce it. This must also be done in such a manner that the every-day running of our courts are not hindered by the withdrawal of that little expertise which is still in place.