Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998)Chapter 1 : Definitions and Interpretation1. Definitions and interpretation of Act |
| (1) | In this Act, unless the context otherwise indicates— |
"Account"
means the Criminal Assets Recovery Account established under section 63;
"authorised police official"
means any official of the South African Police Service who is authorised by the National Director or the National Commissioner of Police to act under this Act;
"Committee"
means the Criminal Assets Recovery Committee established in terms of section 65;
[Definition amended by section 3(a) of Act No. 24 of 1999]
"criminal gang"
includes any formal or informal ongoing organisation, association, or group of three or more persons, which has as one of its activities the commission of one or more criminal offences, which has an identifiable name or identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity;
"enterprise"
includes any individual, partnership, corporation, association, or other juristic person or legal entity, and any union or group of individuals associated in fact, although not a juristic person or legal entity;
has a corresponding meaning with the expression in section 1 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004;
"High Court"
includes for the purposes of Chapters 2, sections 25 to 29 of Chapter 5 and Chapter 6 any judge thereof;
"instrumentality of an offence"
means any property which is concerned in the commission or suspected commission of an offence at any time before or after the commencement of this Act, whether committed within the Republic or elsewhere;
[Definition amended by section 1(a) of Act No. 38 of 1999]
"interest"
includes any right;
"Minister"
means the Minister of Justice;
"National Director"
means—
| (a) | for the purposes of section 65(2)(d), the National Director of Public Prosecutions appointed in terms of section 179(1)(a) of the Constitution; |
| (b) | for the purposes of sections 2(4), 71 or 72 the National Director of Public Prosecutions appointed as contemplated in paragraph (a) and includes a Director of Public Prosecutions, an Investigating Director of Public Prosecutions and a Special Director of Public Prosecutions referred to in section 1 of the National Prosecution Authority Act, 1998 (Act No. 32 of 1998), who is authorised thereto in writing by the National Director in a specific case or in general; |
| (c) | for the purposes of all other relevant provisions of this Act, the National Director of Public Prosecutions appointed as contemplated in paragraph (a) and includes any functionary referred to in section 1 of the National Prosecuting Authority Act, 1998, which is under the control of the National Director and authorised thereto by the National Director in a specific case or in general; |
"pattern of criminal gang activity"
includes the commission of two or more criminal offences referred to in Schedule 1: Provided that at least one of those offences occurred after the date of commencement of Chapter 4 and the last of those offences occurred within three years after a prior offence and the offences were committed—
| (a) | on separate occasions; or |
| (b) | on the same occasion, by two or more persons who are members of, or belong to, the same criminal gang; |
"pattern of racketeering activity"
means the planned, ongoing, continuous or repeated participation or involvement in any offence referred to in Schedule 1 and includes at least two offences referred to in Schedule 1, of which one of the offences occurred after the commencement of this Act and the last offence occurred within 10 years (excluding any period of imprisonment) after the commission of such prior offence referred to in Schedule 1;
"prescribed"
means prescribed by regulation under section 77;
"preservation of property order"
means an order referred to in section 38;
"proceeds of unlawful activities"
means any property or any service, advantage, benefit or reward which was derived, received or retained, directly or indirectly, in the Republic or elsewhere, at any time before or after the commencement of this Act, in connection with or as a result of any unlawful activity carried on by any person, and includes any property representing property so derived;
[Definition amended by section 1(b) of Act No. 38 of 1999]
"property"
means money or any other movable, immovable, corporeal or incorporeal thing and includes any rights, privileges, claims and securities and any interest therein and all proceeds thereof;
| (a) | was acquired, collected, used, possessed, owned or provided for the benefit of, or on behalf of, or at the direction of, or under the control of an entity which commits or attempts to commit or facilitates the commission of a specified offence as defined in the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004; or |
| (b) | has provided financial or economic support to an entity in the commission or facilitation of an offence referred to in paragraph (a); |
"unlawful activity"
means any conduct which constitutes a crime or which contravenes any law whether such conduct occurred before or after the commencement of this Act and whether such conduct occurred in the Republic or elsewhere.
[Definition inserted by section 1(c) of Act No. 38 of 1999]
| (2) | For the purposes of this Act a person has knowledge of a fact if— |
| (a) | the person has actual knowledge of that fact; or |
| (b) | the court is satisfied that— |
| (i) | the person believes that there is a reasonable possibility of the existence of that fact; and |
| (ii) | he or she fails to obtain information to confirm the existence of that fact. |
| (3) | For the purposes of this Act a person ought reasonably to have known or suspected a fact if the conclusions that he or she ought to have reached are those which would have been reached by a reasonably diligent and vigilant person having both— |
| (a) | the general knowledge, skill, training and experience that may reasonably be expected of a person in his or her position; and |
| (b) | the general knowledge, skill, training and experience that he or she in fact has. |
[Subsection (3) amended by section 3(d) of Act No. 24 of 1999]
| (4) | Nothing in Chapters 2, 3 and 4 shall be construed to limit prosecution under any other provision of the law. |
| (5) | Nothing in this Act or in any other law, shall be construed so as to exclude the application of any provision of Chapter 5 or 6 on account of the fact that— |
| (a) | any offence or unlawful activity concerned occurred; or |
| (b) | any proceeds of unlawful activities were derived, received or retained, |
before the commencement of this Act.
[Subsection (5) inserted by section 1(d) of Act No. 38 of 1999]