The gaps in POCA: Enablers of organised crime evade justice

THE Prevention of Organised Crime Act (POCA), designed to prosecute the participants and members of criminal organisations, does not reach the outer ring of professional enablers. 

This is according to new report on transnational organised crime, from Gangs to Grey Agents (A Proposal to Fortify South Africa’s Organised Crime Laws Against Enablers), which stated that professional actors never join a criminal group or intentionally facilitate specific crimes.

However, they knowingly profit from demand in the broader criminal market by deliberately distancing themselves from its workings, shielding behind a cynical ignorance of the criminality their business model sustains. 

The report was conducted by the Global Initiative Against Transnational Organised Crime (GI-TOC), which said professional organised crime endures because it operates within the same professional ecosystem that sustains legitimate business, drawing upon lawyers, accountants, logistics firms and real estate companies that provide the services necessary to plan, execute, and manage any complex enterprise.

The report, authored by attorney and crime analyst Raphael Mackintosh, identifies and explains the gap in POCA’s current offence structure and proposes a straightforward solution.

POCA is a South African law designed to combat organised crime, money laundering and criminal gang activity. It provides measures for asset forfeiture, including civil forfeiture of assets derived from unlawful activities, and mandates reporting of suspicious transactions to help disrupt criminal enterprises.

The Act also criminalises racketeering and other gang-related activities. 

However, according to the report, POCA fails to reach traders and professionals who knowingly furnish equipment, communications, premises, or expertise that materially strengthen criminal groups without directly participating in crimes or handling tainted property.   

“A landlord who knowingly leases and outfits a warehouse for an abalone syndicate operates beyond POCA’s ambit. So does a telecommunications supplier who provides encrypted communications systems to a drug cartel. The doctrinal fit remains poor even if prosecutors attempt to force existing offences to cover such conduct. 

“Each POCA offence that might conceivably apply, demands a specific form of criminal intent that commercial enablers rarely possess (or can be proven to possess). This conceptual mismatch, compounded by the Act’s onerous evidentiary requirements, permits an indispensable layer of the criminal economy to peddle its wares with virtual impunity,’’ reads the report. 

South Africa’s protracted struggle against organised crime has reached a tipping point.

In July, KwaZulu-Natal Police Commissioner Nhlanhla Mkhwanazi made explosive allegations that South Africa’s criminal justice system was compromised because of the infiltration of criminal syndicates into police, judicial, intelligence and law enforcement structures.

As a result of these allegations, President Cyril Ramaphosa established the Commission of Inquiry into Criminality, Political Interference and Corruption in the Criminal Justice System - known as the Madlanga Commission - to investigate and report on the veracity, scope and extent of the allegations. 

A separate Parliamentary investigation is also happening at the same time into the same allegations. 

Mkhwanazi’s allegations were echoed by the head of Crime Intelligence, Lieutenant-General Dumisani Khumalo, who during his appearance at the commission, revealed the existence of a cartel of organised crime syndicates that have infiltrated the SAPS by developing relations with some within its leadership in return for protection, as they engage in major criminal operations. 

Khumalo referred to this as the Big Five cartel, adding that it is based in Gauteng.

He said the cartels' main business is drugs, and it is also associated with contract killings, cross-border movement of stolen vehicles, kidnappings, tender fraud and extortion related mainly to drug trafficking. Khumalo named businessmen Vusimusi ‘Cat’ Matlala and Katiso Molefe as two of the Big Five. 

GI-TOC said that despite a seemingly comprehensive legislative and policy framework, significant obstacles continue to impede successful prosecutions under POCA, but combating organised crime relies heavily on the ability of the police to gather intelligence on criminal groups, their activities and the wider network of associates and criminal contacts on which they rely. 

However, SAPS lacks adequate staffing, resources and training, which compromises intelligence gathering and hinders investigations into complex POCA cases, as evidenced by the under-capacitated anti-gang units. 

The report also stated systemic limitations create further barriers to POCA’s effective implementation. These include community relations with gang structures, which are driven by both fear and economic factors, as well as a pervasive culture of witness intimidation.

"This is particularly pronounced in gang-related prosecutions where witnesses reside in the same communities as the accused on trial."

Willem Else, a crime expert at the Institute for Security Studies, said the report addresses challenges faced by South Africa and the revelations that have come out of the Madlanga Commission and Parliament's Ad Hoc Committee investigating Mkhwanazi's allegations.

The report recommended that for non-designated organisations, a higher fault standard should apply, and the prosecution must establish that the support was provided for the specific purpose of enhancing the group’s ability to commit crimes.

Cape Times