Abstract
Criminal gang activity presents a substantial threat to the safety and security of, in particular, the inhabitants of the Cape Flats in Cape Town. The State has intervened legislatively through the form of the Prevention of Organised Crime Act 121 of 1998. This is somewhat of a ‘super-criminalisation’ given that similar common law and statutory measures already existed prior to the promulgation of the Act. What is the rationale for the criminalisation of gang activity in South Africa? Furthermore, if there is sufficient rationale for this super-criminalisation, is there sufficient basis to argue for the additional responsibility of gang leaders, which is currently left uncovered by the Act?
Highlights
The criminalisation of gang activity in South AfricaCriminal gang activity presents a substantial threat to the safety and security of, in particular, the inhabitants of the Cape Flats in Cape Town
Two questions must be posed given the seemingly ineffective statutory response
What is the rationale for the criminalisation of gang activity in South Africa? if there is sufficient rationale for this super-criminalisation, is there sufficient basis to argue for the additional responsibility of gang leaders, which is currently left uncovered by the Act?
Summary
Criminal gang activity presents a substantial threat to the safety and security of, in particular, the inhabitants of the Cape Flats in Cape Town. The State has intervened legislatively through the form of the Prevention of Organised Crime Act 121 of 1998 This is somewhat of a ‘super-criminalisation’ given that similar common law and statutory measures already existed prior to the promulgation of the Act. What is the rationale for the criminalisation of gang activity in South Africa? The Equality Court has found that the formula used to distribute police resources unfairly discriminated against people ‘on the basis of race and poverty’.5 Several of those areas, such as Khayelitsha, Nyanga and Harare, are gang hot spots. The Prevention of Organised Crime Act 121 of 1998 (POCA) was introduced over 20 years ago, to curb criminal gang activity, among other objectives. Despite this statutory intervention, gang-related activity remains pervasive. If sufficient rationale exists, does POCA go far enough to protect these interests, or do these measures go too far?
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