A generally accepted comprehensive definition of organised crime, or of organised crime structures, has yet to emerge both in South Africa and internationally. No unanimity therefore exists on questions such as:

What is a criminal organisation or a syndicate?



When do the criminal activities of street gangs or syndicates amount to organised crime?



What is the difference between a gang and a syndicate?

South African attempts at defining organised crime have sometimes moved into unrealistic directions because of a determination to try and capture specific structural aspects with which a criminal organisation would have to comply if its activities are to fall within the definition of organised crime. The focus should rather fall on the nature of the activities of a criminal organisation. The SAPS has tended to rely on the definition presently in use at Interpol’s Organised Crime unit, namely:

"Any group of criminals that have a corporate structure, whose primary objective is to obtain money and power through illegal activities, often surviving on fear and corruption."4

The reference to ‘corporate structure’ has proved to confuse and side-track many a South African police detective dealing with organised crime. This is understandable, considering that not many South African criminal groups have clearly definable or ‘corporate’ structures. The Interpol definition does not take account of the fact that organised crime in South Africa is more often than not associated with loose, shifting coalitions of groups and individuals who rely on networks and who constantly enter into new associations, partnerships or coalitions for the different criminal objectives which they pursue. The majority of organised crime structures in South Africa are informal associations which change daily.5 However, there are areas in the country, such as the Western Cape, in which the influence of the well-structured prison gangs is very pronounced. This has led to a situation where more developed gangs and crime syndicates in that province tend to be more structured than is the case in other provinces. The Interpol definition therefore continues to be a subject for debate within the police.

International debates around definitions of organised crime have moved away from a focus on structures to the conduct and the nature of such criminal organisations. The growing international realisation that co-operation between countries is essential in countering organised crime, has led to serious attempts at moving towards one internationally accepted definition. The reasoning is logical: if there is to be increased international co-operation in dealing with organised crime, there needs to be clarity on precisely what type of criminal conduct international efforts are called upon to counter.

Two significant international attempts have been made to find acceptable international definitions of organised crime. One is the United Nations Draft Convention for the Suppression of Transnational Organised Crime which was discussed at a UN-sponsored meeting of a group of experts early in 1998. At this meeting, which was attended by representatives of about fifty five countries including South Africa, an attempt was made to start with the process of drafting a comprehensive international convention against organised transnational crime.6 No agreement was reached with regard to a definition of organised crime, but the various options available were recorded. An example of one of the more than six options is the following:

“1. For the purpose of this Convention, ‘organized 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 the furtherance of criminal activity and to infiltrate the legitimate economy, in particular by:

(a) Illicit traffic in narcotic drugs or psychotropic substances, money-laundering ...;
(b) Traffic in persons ...;
(c) Counterfeiting of currency ...;
(d) Illicit traffic in or stealing of cultural objects ...;
(e) Stealing of nuclear material, its misuse or threat of misuse to harm the public ...;
(f) Terrorist acts;
(g) Illicit traffic in or stealing of arms and explosive materials or devices;
(h) Illicit traffic in or stealing of motor vehicles;
(i) Corruption of public officials.

2. For the purpose of the present Convention, ‘organized crime’ includes commission of an act by a member of a group as part of the criminal activity of such group.”7

The second attempt to find an internationally acceptable definition relates to the endeavours of the member states of the European Union. These attempts at formulating internationally acceptable definitions have focused more on the criminal organisations which are responsible for organised crime. During March 1998, the Council of the European Union reached agreement on a definition of a criminal organisation. It agreed on a Joint Action to make it a criminal offence to participate in a criminal organisation in the member states of the European Union.8 Article 1 of this Joint Action defines the notion of criminal organisation as follows:

"Article 1:

Within the meaning of this Joint Action, a criminal organisation shall mean a lasting, structured association of more than 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 of a maximum of at least four years or a more serious penalty, 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.

The crimes or other offences referred to in the first paragraph include those mentioned in art. 2 of the Europol Convention and in the Annex thereto and carry a sentence at least equivalent to that provided for in the first paragraph."

Article 2 of the Europol Convention describes which conduct by members of a criminal organisation should be defined as criminal offences in the national legislation of member states of the European Union.

"To assist in the fight against criminal organisations, each Member State shall undertake ... to ensure that one or both of the types of conduct described in paragraph 1 or paragraph 2 are punishable by effective, proportionate and dissuasive criminal penalties.

1. Conduct by any person who, with the intent and with knowledge of either the aim and general criminal activity of the organisation or the intention of the organised group to commit the offence in question, actively takes part in:

- the criminal organisation’s activities referred to in art. 1, even where that person does not take part in the actual execution of the offences concerned and, subject to the general principles of the criminal law of the Member State concerned, even where the offences are not actually committed

- the organisation’s other activities in the further knowledge that his participation will contribute to the achievement of the organisation’s criminal activities as referred to in art. 1.

2. Conduct by any person consisting in an agreement with one or more persons that an activity should be pursued which, if carried out, would amount to the commission of such crimes or offences as referred to in art. 1, even if that person does not take part in the actual execution of the activity.”

The definition contained in the above Article 1 of the draft Joint Action, read with Article 2 of Europol Convention, constitutes an attempt to accommodate two different approaches in one definition. These two approaches have to do with different criteria for extradition purposes with that member states of the European Community have to comply with. The first paragraph of Article 1 above designates the offences which are to fall within the definition by referring to a general threshold sentence, namely four years imprisonment or more. The second paragraph, which refers to the Europol Convention, relies on the ‘list approach’, that is a list of specific crimes referred to in the Convention. In addition to reflecting these two different options, that is the ‘list approach’ and the ‘no list approach’, the content of Article 2 of the Europol Convention also accommodates two approaches in defining criminal conduct: the "participation in a criminal organisation" approach, and the "conspiracy" approach.9

Of interest to the South African debate around the definition of organised crime is the fact that the European Union approach focuses more on the nature of the conduct of members of a criminal organisation than on the structure of the criminal organisation itself. Its reference to the structure of a criminal organisation is a very general one, presumably intended to cover the widest possible range of structures on which such organisations could be based: "... a criminal organisation shall mean a lasting, structured association of more than two persons, acting in concert with a view to committing (certain) crimes..."

For the present, however, and in order to spell out an understanding of these concepts, the following definition of ‘organised crime’ will be used:10

"Organised crime consists of those serious criminal offences committed by a criminal organisation which is based on a structured association of more than two persons acting in concert over a prolonged period of time in pursuit of both their criminal objectives and profits."

The majority of crime syndicates are involved in some form of organised crime. In line with the above definition of organised crime, ‘crime syndicates’ can be defined as follows:

"A crime syndicate is a criminal organisation, engaged in the commission of serious criminal offences, which is based on a structured association of more than two persons acting in concert over a prolonged period of time in pursuit of both their criminal objectives and profits."

This definition accommodates the generally fluid nature of the way in which crime syndicates are structured in South Africa and in which they often associate with others in pursuit of specific criminal objectives for profit.

The requirements in the above definitions of "serious criminal offences" and "acting in concert over a prolonged period of time in pursuit of both their criminal objectives and profits", are important when considering whether or not the activities of a group of criminals constitute organised crime. The lack of clarity about what is meant by "serious criminal offences", however, does remain a valid point of criticism.

In general, gangs tend to be less formally structured than syndicates. They are often territorially based, their criminal activities involve less sophistication than those of syndicates, their members tend to be youths and they tend to identify themselves by a gang name. The many different manifestations of criminal gangs makes it highly unlikely that one single definition will ever be adequate or comprehensive enough to cover all the shades and variations. As a guide, and to indicate a general understanding of the nature of a gang, the following definition is provided:11

"A criminal gang consists of an organised group of members which has a sense of cohesion, is generally territorially bound, which creates an atmosphere of fear and intimidation in the community and whose members engage in gang-focused criminal activity either individually or collectively."

It becomes more problematic to describe a criminal group as a gang when some of its members are adult and the gang, as a result, is better organised and therefore better equipped to engage in more serious crimes for profit — as is the case with a growing number of gangs. Under certain circumstances, therefore, the criminal activities of gangs do amount to organised crime.