Study finds anti-gang legislation ineffective in addressing problem

WHAT do residents of the Cape Flats, Westbury in Johannesburg and the northern areas of Port Elizabeth have in common? They live in constant fear as gang members continue to kill each other and innocent residents.

And while many solutions have been put forward to deal with gangs, one of the major problems is the ineffectiveness of anti-gang legislation.

This is according to Dr Delano van der Linde from the Faculty of Law at North-West University. Van der Linde obtained his doctorate in Criminal Law last week at the sixth graduation ceremony at Stellenbosch University.

“The Prevention of Organised Crime Act (POCA) enacted to combat, among others, organised crime, money laundering and criminal gang activities, has been inadequate to deal with criminal gangs because of several textual, institutional and constitutional shortcomings,” Van der Linde said.

“It became clear that although criminal gang activity contributes disproportionately to both national and (the Western Cape) provincial crime statistics, the study of criminal gang activity from a legal perspective was completely neglected and was deserving of a comprehensive investigation.”

Van der Linde found that POCA is substantially similar to the common law and equally ineffective when it comes to dealing with gang activity.

He pointed out that POCA was supposed to supplement the common law, which failed to disrupt the way gangs operate.

“Save for maybe the crime of gang recruitment, POCA doesn’t add much to the arsenal of common law crimes such as conspiracy, incitement, public violence and the common purpose doctrine that could address groupbased criminality.”

Van der Linde said the ineffectiveness of POCA was supported by the increasing number of gang-related murders with about 21.6% of all murders committed in the Western Cape (during the 2017/18 financial year) being attributed to gangs.

“Another problem with POCA is that the punishments for gang members are also extremely weak – ranging from three to eight years or the alternative of a fine.”

Van der Linde pointed to several strategies from international law that could be incorporated.

“Where a gang member commits a crime on behalf of a superior, the superior could be held liable, as if he or she committed the crime him- or herself.”

Problem with POCA is that the punishments for gang members range from three to eight years

Dr Alec Basson Science writer

Dr Alec Basson is science writer at Stellenbosch University.