The Act, also know as POCA, introduces laws that work against organised crime and gang activities, with a special focus on money-laundering and racketeering or illegal business activities. Crimes related to gangs, moneylaundering or racketeering can be prosecuted in terms of this Act, even if the crime was committed before the Act came about, or if it was committed by a South African in another country.
When is a person guilty of racketeering?
A person who has any property which they know is linked to any illegal business activity is guilty of a racketeering offense. If a court finds that the person ought reasonably to have known that their property was being used in illegal activities, then that person is also considered guilty of a crime. This means that ignorance is no defence! During the prosecution of racketeering-related crimes, if the court thinks it is fair, it may hear evidence related to hearsay and/or previous convictions.
What is the punishment for racketeering?
If a regional court thinks that a criminal ought to be fined for more that R100 million, or be imprisoned for more than 30 years, then the court will stop proceedings and hand the case over to the High Court. The punishment for racketeering- related crimes can be high. Any person convicted of racketeering can get fined for up to R1 000 million or be imprisoned for life.
When is a person guilty of money-laundering?
A person who knows or ought to have known that they have acquired any property or proceeds derived from unlawful activity, or who can be linked to ill-gotten gains, can be found guilty of money-laundering. It is also an offence to acquire, use or own property which has been stolen or derived through any unlawful activity, and/or to help another person to benefit from unlawful activities.
When is a person guilty of a gang-related crime?
It is a crime to:
• Wilfully aid any criminal activity carried out by a criminal gang;
• Threaten to commit any act of violence by a criminal gang;
• Threaten any person or persons with retaliation in response to an act or alleged act of violence;
• Perform any act that contributes to a pattern of criminal gang activity;
• Incite or encourage any other person to take part in criminal gang activity; or
• Intentionally cause or encourage another person to join a criminal gang.
What is the punishment for gang-related crimes?
Inciting or encouraging another person to take part in gang activities or to join a gang warrants a fine or imprisonment for a period of up to 3 years. All the other gang-related crimes are punishable by fine or imprisonment of up to 6 years, except in cases where the offence is committed within 500 metres of a public or private school, at a time when classes are taking place. Such an aggravating circumstance can result in the period of imprisonment being extended to 8 years.
What happens to the profits of crime?
Confiscation orders give the court the right to confiscate any illgotten gains, whereas restraint orders stop suspects from getting rid of any property or profits while they are being investigated.
Whenever a convicted person is found to have benefited from a crime, the court may issue a confiscation order, instructing them to repay the State an appropriate amount, in addition to any punishment imposed for the offence. This confiscated amount cannot be more than the value of the proceeds of the crime.
During the case, the public prosecutor may make use of statements in writing under oath. The defendant has the right to dispute this evidence by stating the grounds on which they object. If the defendant cannot dispute the evidence, then any allegation contained in the statements will be considered as conclusive proof in a court of law.
If it is found that a defendant did not have legitimate sources of income to explain their ownership of property, then that property will be considered as an illgotten gain. If the court puts a restraint order on a person’s property, that person cannot deal with the property in any way. This means they cannot sell the property, give it away or transfer ownership.