Notes: Managing and participating in a criminal enterprise under POCA: Duplication of convictions? A discussion of the conflict between S v Prinsloo and S v Tiry

Abstract

Some debate exists as to whether convicting an accused of both participating in and managing a criminal enterprise under chap 2 of the Prevention of Organised Crime Act 121 of 1998 constitutes an impermissible duplication of convictions. This note analyses the relevant provisions of the Act, and the concept of duplication of convictions, against two conflicting Supreme Court of Appeal judgments, namely S v Prinsloo 2016 (2) SACR 25 (SCA) and S v Tiry 2021 (1) SACR 349 (SCA). In these two cases the court reached diametrically opposite conclusions on the same legal question, creating uncertainty. Ultimately, the question whether a duplication of convictions has occurred depends on the facts of each case, and the extent to which managers-cum-participants have ‘dirtied their hands’ in the pursuit of the criminal enterprise. Foreign perspectives from United States constitutional jurisprudence will also be considered.