Considering the constitutionality of South Africa’s anti-gang legislation in light of the principle of legality

Abstract

Abstract The essence of the principle of legality is to constrain governmental, legislative and judicial power, and protect citizens from the arbitrary exercise of these powers. This is especially true in the context of the drafting and interpretation of criminal law. Criminal laws in particular must be drafted in a reasonably clear fashion to provide citizens with fair warning of criminal sanction. The courts must also interpret these laws strictly, so that citizens are not punished for conduct that did not fall within the scope of either a common law or statutory crime. This article examines whether certain definitions employed in the Prevention of Organised Crime Act 121 of 1998 do not offend the principle of legality as it employs dubiously wide definitions. Although widening the criminal net for, in particular, criminal gang activities, these definitions arguably do not provide fair warning to citizens to avoid criminal sanction and may also be at risk of overbroad judicial interpretation. The analysis will further take place in light of comparable foreign legislation and decisions.