Regional perspective: Eastern and Southern Africa

Case study 3 (Pattern of racketeering activity in the poaching of abalone - South Africa)

The case concerns the poaching of abalone, a species of mollusk considered a delicacy in the Orient. Large quantities of abalone have been exported from South Africa from the 1980s to date, mostly illegally. 

Abalone poaching reached alarming proportions in Port Elizabeth, regarded as the hub of the Eastern Cape. The illegal activities led to the depletion, bordering on the extinction of abalone in the area. To combat the illegal activities, the South African Police formed a team of investigators including officials from the Department of Agriculture, Forestry and Fisheries (DAFF), under the command of the Organized Crime Unit’s chief.

In March 2015, police surveillance on suspicious coastal activities led to the arrest of a poacher, who later turned into a police informant (as provided by section 204 of the South African Criminal Procedure Act). The information he supplied allowed the detention of other members of the organized criminal group who also agreed to become “section 204” witnesses.

The evidence produced in the trial in respect of the various racketeering activities of the group indicates that the enterprise was in operation between January 2015 and April 2016. The investigation of the criminal organization took time because of the sophisticated manner in which they operated, explained in the judgment as follows:

Diving equipment had to be organised. There were divers who would dive and harvest the abalone from the sea.The abalone would be placed in marked bags, bearing the identification marks of each diver. The abalone would be given over to a gardjie, who would take it to a designated motor vehicle. The driver would drive to the house (weigh house) where it would be sorted in terms of sizes, deshelled and weighed per bag. Each diver would be paid per the weight and size of the abalone. The abalone would be taken from the weigh house by another driver to a store house, where it would be kept in deep-freezers. It would be transported by another person to a processing plant where it would be cleaned and cooked. After that process it would be transported to either Gauteng or Cape Town and ultimately to China where it is sold as a delicacy. The syndicates operated on a “need to know basis”. The diver does not know the driver. The latter does not know the weighers who in turn do not know the store person. The store person does not know where the processing plant is. Even payments are not made by the kingpin, i.e. the person who ultimately sells it to the market directly. Payments are filtered down through different people. 

The three accused in the case were Mr. Brown, Mr. Victor and Mr. Turner. Mr. Brown, the owner of a construction business, was the employer of the other two defendants, as well as the accomplices turned witnesses, being the kingpin of the criminal operation. 

Mr. Victor played a significant role in the running of the enterprise.  He recruited some of the “204” witnesses to either transport abalone or provided them houses to store abalone. Payment was filtered through him. He was involved in the day to day running of the organization and he was instrumental in carrying out the affairs of the enterprise. Mr. Turner also played an essential role as an employee in charge of weighing, processing, transportation, and other activities critical to the operation.

The trial showed a pattern of racketeering activity vested in the planned, ongoing, continuous and repeated - direct or indirect - involvement in the illegal collecting, possession, transportation and processing of abalone. It also produced evidence that the abalone poached was destined for the international market, as shown by the SMSs and WhatsApp’s messages found in Mr. Brown’s phone. 

Mr. Brown challenged the validity of the police searches, adduced pressure on the part of police officers to turn people into “section 204” witnesses and claimed that the video camera that recorded the operations in the house of the informant amounted to a trap. The judge dismissed most of these claims, but several police searches were declared invalid.

The three defendants were found guilty of criminal offences against the Marine Living Resources Act (MLRA) and the Prevention of Organised Crime Act (POCA) and sentenced to several terms of imprisonment.

Case-related files

• State v Brown and Others (CC 18/2017) (2019) ZAECPEHC 11; (2019) 2 All SA 552 (ECP) (5 February 2019). Judgment.
• State v Brown and Others (CC18/2017) (2019) ZAECPEHC 12; (2019) 2 All SA 622 (ECP) (1 March 2019). Sentencing.

Significant features

• Racketeering
• Requirements of police searches 
• Use of surveillance cameras 

Discussion questions

• What is the approach of South Africa for the criminalization of organized crime? Elaborate on the differences between conspiracy, criminal association and racketeering.
• Watch this video produced by The National Geographic and discuss the extent of the threat that this crime poses to South Africa’s natural resources.
• In State v Brown and Others (2019), a failed police arrest brought a charge of obstruction of justice (Count 3: Attempt to defeat or obstruct the course of justice) against Mr. Brown, who was eventually acquitted of it. Obstruction of justice plays a defining role in enabling organized criminal groups in several ways. Considering the facts of this case, discuss hypothetical alternative scenarios for the obstruction of justice offence.