The role of the Criminal Justice System in Combating Organised Crime in South Africa.
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it. Obedience to the law is demanded as a right; not asked as a favour" (1)
Until fairly recently organised crime was a rather foreign phenomenon in the South African legal system. Although gangs have been known to be involved in criminal activities, these activities were usually limited to crimes which the criminal justice system was well capable of dealing with. However, since South Africa's re-integration into the international (2) not only have the country's borders been opened for foreign investment, tourism, etc, but also for international criminals. Crimes such as transnational drug trafficking, smuggling in stolen and robbed motor vehicles, arms smuggling, money laundering and corruption became the order of the day. Lawlessness increased and violent crimes against all people became so rife that more people than ever before either emigrated or temporarily left the country. Factors such as a shortage of human and other resources among the police and prosecutors also play no small role in promoting criminal conduct.
2. BASIS OF CRIMINAL LIABILITY IN SOUTH AFRICA
Criminal liability is based on the principle of nullum crimen nulla poena nisi mens sit rea. (3) To be held criminally liable the crime must firstly be clearly defined. (4) Criminal liability is also very personal it depends on the perpetrator's unlawful and blameworthy conduct. Because of this rather restricted approach many criminals escaped the net of justice. To counter this, concepts such as attempt, conspiracy, incitement, common purpose, vicarious liability and others were incorporated in the law. (5) Despite the incorporation of these concepts into the legal system, it remains difficult to beyond a reasonable doubt prove the guilt of a participant in certain criminal activities. Based on the English rule of common purpose, a court may infer criminal liability on the part of a person despite that person not having physically committed the crime. An accused person may, for instance, be convicted of murder despite his personally not having caused the death of the deceased. It is, however, necessary for t he state to prove that the accused was present where the violence was being committed; was aware of the assault on the victim; intended making a common cause with those perpetrating the assault; performed some act of association with the conduct of the other perpetrators thereby manifesting his/her sharing of a common purpose; and had the necessary mens rea. (6)
A conspiracy is often even more difficult to prove. Usually the only witness the state has is a co-conspirator or a police agent who has successfully infiltrated the criminal syndicate or gang. If it is the former, the co-conspirator's evidence must be evaluated with caution as he/she has a particular interest and it could easily be said that he/she is biased. (7) Corroboration for the co-conspirator's evidence or that of the police agent is, fortunately, often found in audio and video recordings of the conversations and actions of the members of the criminal syndicate.
South African law also provides that a corporation, directors and servants thereof and members of certain associations may under certain circumstances be held criminally liable. (8) Before the intervention by the Constitutional Court, (9) the state's case was strengthened by the operation of a presumption in terms of which the accused (a director or servant of the corporation) was expected to prove that he did not take part in the commission of the offence and that he could not have prevented it. (10) Although the impression is prima facie created that the association referred to in section 332(7) of the Criminal Procedure Act, 1977 (Act 51 of 1977), must be a legitimate body, the reference to the provisions of subsections (8) and (9) (11) in the decision of S v Twala (12) means that it may be applicable to a criminal association as well.
In the South African law a conspirator, accomplice, inciter or person convicted of an attempt to commit a crime may receive the same sentence as the principal offender, although such persons are usually dealt with somewhat more leniently.
3. ORGANISED CRIME AND RELATED CRIMINAL ACTIVITIES
There is an international concern about organised crime and criminal organisations. At the 51st session of the General Assembly of the United Nations (UN) the Chairman submitted a draft resolution urging "Member States (to) seek to protect the security and well-being of their citizens and all persons within their jurisdictions by taking effective national measures to combat serious transnational crime, including organised crime, ... and shall pledge their mutual cooperation in those efforts". (13)
That "organised crime" is difficult to define is evident from the fact that the proposed Prevention of Organised Crime Bill does not contain a definition as such. (*) It seems that the Council of Europe also have difficulty with the same term and for that reason they have resorted to defining a "criminal organisation" as "a lasting, structured association of more that two persons, acting in concert with a view to committing crimes or other offences which are punishable by deprivation of liberty or a detention order ..., whether such crimes or offences are an end in themselves or a means of obtaining material benefits and, if necessary, of improperly influencing the operation of public authorities". (14) This elimination method is apparently also to be used in the proposed South African legislation. (15) The Polish government has also made a specific recommendation regarding organised crime, namely that "... 'organised crime' means group activities of three or more persons, with hierarchical links or personal relationships, which permit their leaders to earn profits or control territories or markets, internal or foreign, by means of violence, intimidation or corruption, both in furtherance of criminal activity and to infiltrate the legitimate economy", in particular to commit the following offences: illicit trafficking in drugs; trafficking in persons; counterfeiting currency; illicit stealing of or dealing in cultural objects; stealing of nuclear material; terrorism; arms smuggling; motor vehicle smuggling; and corruption. (16)
In the absence of a definition for either 'organised crime' or 'criminal activities', prosecuting authorities are presently being led by the facts of every criminal investigation. Should the facts indicate that a number of persons are being suspected of involvement in committing serious crimes in an organised manner, it is dealt with as such. The practical effect is that the Attorney-General gets involved in the investigation phase and special investigation techniques are used.
4. THE ROLE OF THE PROSECUTING AUTHORITY
The traditional approach that it is the task of the police service to ensure law and order, was reiterated by the Constitution where it states that: "The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law". (17)
Although the purpose of the prosecuting authority is to institute and conduct criminal prosecutions, (18) provision is also made for Investigating Directorates in the office of the National Director of Public Prosecutions. (19) These Investigating Directorates may be established in respect of specific offences or specified categories of offences.
Despite a lack of authority in any law, experience has taught that one way of effectively addressing organised crime is by way of a joint task team consisting of members of the police service, a prosecutor and, where necessary, an accountant or other forensic experts. The benefit of using a task team is that the prosecutor can give direction to the investigation and the investigating officers are immediately in a position to execute his requests. Once the whole task team is satisfied that sufficient evidence exists to arrest all the role-players, the operation can be terminated and the matter may be set down for trial with the minimum delay.
Since the investigation of organised criminal activities is very dependent on the infiltration of syndicates by police agents, information supplied by informants, observation of suspects by the police and interception of telephone and mail communications, (20) the Legislature recognised the importance of the involvement of the Attorney-General. The situation supra in fact received statutory sanctioning when section 252A was inserted in the Criminal Procedure Act. (21)
5. THE PRESENT LEGAL POSITION REGARDING INVESTIGATION OF ORGANISED CRIMINAL ACTIVITIES
Section 252A of the Criminal Procedure Act now provides for specific guidelines regarding undercover operations and traps. Briefly it provides for the following:
(a) Law enforcement agencies may utilise the services of traps or do undercover investigations provided the conduct of the trap does not go beyond providing an opportunity to commit an offence.
(b) Various factors must be considered when the court rules on whether or not the conduct of the trap, the police agent or the police investigator has gone beyond providing an opportunity to commit an offence. These are: (22)
-- whether prior approval was obtained from the relevant Attorney-General;
-- the nature of the offence(s) under investigation, having regard to the security of the state, the safety of the public, the maintenance of public order, the national economy, the prevalence of the offence in the particular area; and the seriousness of the offence;
-- the availability of other investigating techniques;
-- the degree of persistence and the number of attempts made before the accused succumbed and committed the offence;
-- the type of inducement, including the degree of deceit, trickery, misrepresentation or reward;
-- the timing of the conduct, in particular whether the police instigated the offence or became involved in illegal activities;
-- the exploitation of human characteristics;
-- whether any threats were used against the accused;
-- whether, prior to the setting of the trap, there existed suspicion based on reasonable grounds that the accused was involved in criminal activities;
-- whether the agent or other official acted in good or bad faith;
-- the proportionality between the crimes allegedly committed by the accused and the conduct of the agent; and
-- any other factor which in the court's opinion is relevant to the issue.
(c) If the court finds that the conduct of the agent or trap has gone beyond providing an opportunity to commit an offence, such evidence may be refused if it was obtained in an improper or unfair manner and if the evidence so obtained would render the trial unfair.
(d) An Attorney-General may issue general or specific guidelines regarding supervision and control of traps and undercover operations.
(e) Criminal liability for the agent will not arise for any act constituting a crime if the agent acted in good faith. No prosecution of an agent may be instituted without the written authority of the Attorney-General.
(f) The onus of proving on a balance of probabilities that evidence under subsection (3) should be allowed rests on the state. The accused is, however, obliged to furnish the grounds on which the evidence is challenged.
(g) The question of whether evidence under subsection (3) should be allowed or not may be adjudicated as a separate issue.
6. RATIONALE FOR SECTION 252A
The objective of the Legislature was to statutorily provide for entrapment as a defence and to prescribe guidelines for the use of undercover operations and traps. In this regard the crux of the legislation is found in the following:
-- Subsection (1) "that the conduct does not go beyond providing an opportunity to commit an offence";
-- Subsection (3) "If a court ... finds that ... the conduct goes beyond providing an opportunity ..., the court may refuse to allow such evidence ..."; and
-- Subsection (6) "the burden of proof ... that the evidence is admissible, shall rest on the prosecution ...".
The Constitution of the Republic of South Africa, 1996, (23) being the supreme law of the land, (24) is the law against which all other laws must be compared. In this regard section 35(5) provides as follows: "Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise detrimental to the administration of justice".
It is evident from the provisions of section 252A that the emphasis is on fairness of the trial, (25) thus in conformity with the Constitution. This is contrary to the some of the court-rulings in the United States (US) in terms of which the evidence must be excluded as inadmissible and that the trial would therefore probably be unfair. Regarding fairness, the Constitutional Court ruled as follows: "What the Constitution demands is that the accused be given a fair trial. (F)airness is an issue which has to be decided upon the facts of each case, and the trial judge is the person best placed to take that decision. At times fairness might require that evidence unconstitutionally obtained be excluded. But there will also be times when fairness will require that evidence, albeit obtained unconstitutionally, nevertheless be admitted" (26)
7. CONSTITUTIONALITY OF UNDERCOVER OPERATIONS AND TRAPS
The situation regarding entrapment in a number of countries, including South Africa, is discussed below.
7.1 United States of America
Legislation of the State of Arkansas pertaining to entrapment reads as follows:
"(a) It is an affirmative defence that the defendant was entrapped into committing an offence. (b) Entrapment occurs when a law enforcement officer or any person acting in cooperation with him induces the commission of an offence by using persuasion or other means likely to cause normally law-abiding persons to commit the offence. Conduct merely affording a person an opportunity to commit an offence does not constitute entrapment"(own emphasis).
In Sherman v US (27) the court ruled as follows: "The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacture of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, a different question is presented when criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offence and induce its commission in order that they may prosecute". (28) According to this dictum: "Entrapment occurs only when the criminal conduct was the product of creative activity of law enforcement officials".
In Canada entrapment rests on the basis that such conduct brings the justice system into disrepute. (29) The position in Canada is emphasised in the very important decision of R v Mack (30) where the court ruled as follows: "It is the belief that the administration of justice must be kept free from disrepute that compels recognition of the doctrine of entrapment. In the context of the Charter, the court has stated that disrepute may arise from judicial condonation of unacceptable conduct by the investigatory and prosecutional agencies", and "the basis on which entrapment is recognised lies in the need to preserve the purity of the administration of justice".
Entrapment is present when: "(a) The authorities provide a person with an opportunity to commit an offence without acting on reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry; (b) although having a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence". (31) According to the judgement, to be acting bona fide and having reasonable suspicion, there must be sufficient connection between the previous conduct of the accused and the provision of an opportunity to the commission of an offence.
In Ludi v Switzerland (32) the European Court of Human Rights was requested to consider the constitutionality of the use of undercover agents and traps and the interception of telephone conversations. Regarding the latter the Court ruled that: "The telephone surveillance ordered in this case on a basis of serious suspicion of crime was certainly not an abuse of the law".
Regarding the use of undercover agents the Court remarked as follows: (33) "(I) would not be permissible if the undercover agent were to take the initiative, as it were, and provoke the criminal activity which would otherwise not have come about at all; for the prosecuting authorities must not provoke criminality ... Covert investigation does not encroach on a basic right protected by the Federal Constitution. The person concerned id free as regards his decisions and his behaviour towards the undercover agent; he is, however, deceived as to the identity of his negotiating partner and the latter's connection with the police. A criminal is not protected by constitutional law against being observed in the course of his illegal conduct by a police officer who is not recognisable to him as such. Nor can any protection of a criminal against covert investigation be derived from the European Convention".
The Court also ruled that the use of undercover operations is allowed despite no specific provision being made in statutory law. It was, however, emphasised that the trap, acting as a buyer, should not instigate the crime. The Court also expressed an opinion on the protection of investigative methods and ruled that the protection of the identity of the agent does not infringe the accused's constitutional rights. (34)
7.4 United Kingdom
The United Kingdom (UK) does not have a written constitution. The British depend on convention, statute and court judgements. Their criminal justice system is in part regulated by the Police and Criminal Evidence Act (35) which also provides for the use of traps but which does not create the defence of entrapment. A court may exclude such evidence if found to be unfair or not to be in the interest of justice. (36)
7.5 South Africa
A trap has been defined as "a person who, with a view of securing the conviction of another, proposes certain criminal conduct to him, and himself ostensibly takes part therein. In other words he creates the occasion for someone else to commit the offense". (37)
Traps have, even prior to the introduction of section 252A, been allowed in the South African system, albeit as "a necessary evil". (38) Because traps (and though not explicitly said so, also undercover agents) are seen as accomplices, conspirators and instigators, (39) their evidence must be examined with caution and courts would usually want some reliable corroboration for their evidence. Although traps have been exonerated on the basis of absence of wrongfulness or mens rea, one could infer from the judge's remarks in S v Ohlenschlager (40) that he does not agree with this method of crime investigation. (41) In S v Hassen (42) the court held as follows: "The courts are best placed to judge which type of investigation techniques may bring the administration of justice into disrepute ... and ... (a) The police must have independent and reliable information that the person to be trapped was an existing offender. The reason for this is that the state should not artificially create crime ... (b) verbal persuasi on should not be used ... (c) If methods of enticement are used they should simulate the ordinary situation as it normally exists in the community ... (e) The police must verify the information received from the informers ... (f) The person sent to negotiate the trap must be of good character, preferably a policeman ... (g) ... where the trap is executed, does not lend itself to the planting of evidence, etc". (43) Regarding the defence of entrapment the judge said: "To start with, there is no basis in the Constitution for such a defence. Trapping in general is in any event not so abhorrent as to justify a substantive defence of entrapment ...". (44)
Regarding the interception and monitoring of telephone conversations the following was inter elia said in Protea Technology v Weiner: (45) "Uncovering the truth and exposing the ungodly are not thereby relegated to unimportance ... Privacy is not an absolute right under the Constitution".
Traps, undercover operations and the interception and monitoring of telephone conversations and mail are valuable weapons in the armoury of the police and prosecutors. Although these methods are necessary to gather sufficient evidence against criminals involved in organised criminal activities, they must be used with circumspection and restraint while at all times be subservient to the Constitution.
The courts must ensure that accused persons receive fair trials -- this is what the Constitution demands. Courts therefore carefully scrutinise all evidence obtained from traps arid undercover agents against the background of the various rules of evidence and the provisions of section 252A. Therefore, to avoid a finding of unfair treatment of an accused followed by a possible acquittal, police should not do more than to providing an opportunity to commit an offence, subject to a bona fide and reasonable suspicion that the accused was or is involved in criminal activities. Any instigation, incitement or provocation to commit an offence may be regarded as unfair practice.
Keep in mind what Blaise Pascal said: "Justice without strength is helpless, strength without justice is tyrannical. Unable to make what is just strong, we have made what is strong just".
(*.) Since 1 November 1998 the Deputy Director of Public Prosecutions: Transvaal.
(*.) The Prevention of Organized Crime Act, 1998 (Act 121 of 1998) subsequently came into operation on 21 January 1999.
(1.) Theodore Roosevelt.
(2.) Provisionally in 1992 upon the release of Mr. Nelson Mandela and finally on 27 April 1994 when Mr. Mandela was sworn in as President.
(3.) No crime and no punishment unless one is blamed (according to the laws of the land).
(4.) Section 35(3)(I) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) - "Every accused person has a right ... not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted;" Also see S v Friedman (1) 1996(1) SACR 181 (W).
(5.) See section 18 of the Riotous Assemblies Act, 1956 (Act 17 of 1956) and Burchell, South African Criminal Law and Procedure, Volume 1 (Third Edition), Chapters 38 to 40.
(6.) See S v Sefatsa 1988 (1) SA 868 (A) and S v Mgedezi l989 (1) SA 687 (A).
(7.) See Hoffmann & Zeffertt, The South African Law of Evidence, Fourth Edition, 575 et seq.
(8.) Section 332 of the Criminal Procedure Act, 1977 (Act 51 of 1977).
(9.) Sv Coetzee 1997 (1) SACR 379 (CC).
(10.) Section 332(5) of Act 51 of 1977.
(11.) Of section 332.
(12.) 1979 (3) SA 864 (T).
(13.) Article 1 of UN document A/C.3/51/L. 11 dated 4 November 1996.
(14.) Article 1 of Communique 2075, Council, Justice and Home Affairs, 19 March 1998.
(15.) This appears to be the case regarding Act 121 of 1998. See the definitions of "criminal gang"; "pattern of illegal conduct"; and "pattern of criminal gang activity".
(16.) United Nations (General Assembly) document A/C.3/51/7 dated 1 October 1996.
(17.) Section 205(3) of Act 108 of 1996.
(18.) Section 20 of the National Prosecuting Authority Act, 1998 (Act 32 of 1998).
(19.) Section 7 of Act 32 of 1998.
(20.) The Interception and Monitoring Prohibition Act, 1992 (Act 127 of 1992).
(21.) By Act 85 of 1996.
(22.) Section 252A(2).
(23.) Act 108 of 1996.
(24.) See section 2.
(25.) Key v Attorney-General, Cape 1996 (4) SA 187 (CC).
(26.) Key v Attorney-General (supra) at 196A-B.
(27.) (1958) 356 US 369.
(28.) At 851. See also Sorrells v US, (1932) 287 US 435.
(29.) Amato v The Queen, (1982) 69 CCC (2d) 31: "the successful application of the doctrine of entrapment results in the staying of prosecution, the court, in the exercise of its inherent powers, withholding its process from the prosecution on the basis that such would bring the administration of justice into disrepute".
(30.) 4 CCC 3d 1989 and confirmed in R v Elzein, 82 CCC (3d) 455 Quebec Court of Appeal.
(31.) Mack (supra) at 559.
(32.) Publications of the European Court of Human Rights, Series A: Judgements and Decisions, Volume 238, judgement of 15 June 1992.
(33.) At page 17.
(34.) "If it is recognised that the use of undercover agents is justified in the public interest in fighting as effectively as possible against drug dealing, it follows that the identity and the investigative methods of such agents are not lightly to be given away in criminal proceedings; for their continued use would thereby effectively be made largely impossible. Preserving the secrecy of undercover agents does not in itself infringe principles of criminal procedure or constitutional rights."
(36.) Sections 76 and 78.
(37.) See S v Malinga 1963 (1) SA 692 (A) and S v Tsochlas 1974 (1) SA 565 (A).
(38.) S v Kramer 1991 (1) SACR 25 (Nm).
(39.) S v Kellner 1963 (2) SA 435 (A); R v Mary Pound (1882) 2 SC 2; S v Ohlenschlager 1992 (1) SACR 695 (T).
(40.) Supra (footnote 36).
(41.) At 705: "If members of the police or their representatives commit offences while they are acting as traps, such conduct remains punishable ... It will only be a defence if his conduct is authorised by a statutory provision or if knowledge of unlawfulness on his part cannot, as a result of the police instructions, be proved."
(42.) 1997 (1) SACR 247 (T).
(43.) At 248.
(44.) At 250 Also see Mendes v Kitchen 1995 (2) SACR 634 (E).
(45.) All SA LR 1997 Case no. 97/06338 (WLD).
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|Author:||Welch, John I.|
|Publication:||Institute for Strategic Studies|
|Article Type:||Topic Overview|
|Date:||May 1, 1999|
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