Recent legislation and policies could play a role in taking on the scourges of mafia syndication and theft. But as may be expected, the key lies in implementation, say Jennifer Smit & Kyle Grootboom.
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The Critical Infrastructure Protection Act, 8 of 2019 (CIPA) and the second phase of the National Infrastructure Plan (NIP), to be gazetted under the Infrastructure Development Act, 23 of 2014, as well as the Critical Infrastructure Programme (CIP) are measures in the form of policy, legislation and programmes which could be essential in the fight against, and the prevention of, construction and infrastructure related crime such as extortion syndicates, colloquially known as the 'construction mafia'.
The construction mafia is known to target private construction project sites, but also often interfere with mine premises and other infrastructure projects by engaging communities to riot, lock parties out and otherwise disrupt site activities in the event that the group which they represent does not receive jobs, money or a stake in the project. Similarly, these measures can extend to address large-scale theft and syndication through other "mafias" who engage in cable and coal theft as well as the generally pillaging of infrastructure supporting railways, ports, passenger transport, telecommunications, energy, water and education.
The Critical Infrastructure Protection Act
CIPA repeals the National Key Points Act, 102 of 1980 in its entirety and while not being fully operational as yet, the majority of its provisions came into effect on 30 April 2022 with the full act to be proclaimed law in due course. Unlike its predecessor, CIPA does not merely focus on securing a select list of landmarks, but rather aims to secure sites, projects and developments on an ongoing basis in the interest of the protection of economic stability, public safety and the preservation of basic public services.
In furtherance of its aims, CIPA falls within the purview of the Department of Police and not the Department of Defence. In terms of CIPA the Minister of Police has a discretion, acting on the recommendations of the Critical Infrastructure Council, to declare infrastructure as Critical Infrastructure (as defined in CIPA). CIPA makes provision for interested parties, including private parties, to apply to have a site declared Critical Infrastructure taking various factors into consideration.
The constitution of the Critical Infrastructure Council contemplates delegates not only from the departments of Home Affairs, Public Works, Local Government and the security cluster (Defence & SAPS), and but also 5 members from the private sector and civil society (with appropriate infrastructure and security expertise) making it an inclusive environment. The appointments of these participants was gazetted in January 2022 and the Council is seemingly duly constituted.
In terms of section 16(1) of CIPA, infrastructure qualifies for declaration as critical if the function of such infrastructure is
- essential for the economy, national security,
- public safety and the continuous provision of basic public services; and
- the loss, damage disruption or immobilisation of such infrastructure may severely prejudice the functioning stability of the country, public safety and national security.
Critical Infrastructure, once designated as such, is also accorded a risk categorisation and imposed requirements for its preservation and security.
Designation as Critical Infrastructure is necessarily arduous and entails the consideration of a number of factors, including prior incidents and the risk of threats and the importance of the infrastructure in question.
The office of the National Police Commissioner is, in terms of section 9 of CIPA, the party responsible for the administration of CIPA and is tasked with effecting cooperation between the SAPS, other organs of state and the private sector insofar as it relates to Critical Infrastructure and is the first port of call for parties to seek having their infrastructure declared critical. The Commissioner causes the making of inspections and assessments which in turn translates to recommendations collated in quarterly reports made to the Council.
The owner of the Critical Infrastructure, be it state or privately owned, has the responsibility of ensuring compliance with prescribed measures relating to security protocols, at its cost, but if these are not properly observed, the Minister must, after a prescribed remedial notice has been sent, step in and secure the site with the Minister being entitled to recover the reasonable costs of such steps taken from the owner.
The Minister published, for public comment, the Interim Critical Infrastructure Regulations in April 2022 (Interim Regulations). Despite the elapse of the period of comment, it seems that these regulations have yet to be promulgated.
In terms of the Interim Regulations published for comment in April 2022, the Minister, inter alia - establishes the practical operation of the Critical Infrastructure Council in more detail; and creates a further office, being that of the Critical Infrastructure Protection Regulator, who reports to and supports the National Commissioner in carrying out the day to day maintenance of the administrative systems and procedures necessary for the implementation and enforcement of CIPA.
The consequences of breaching the provisions of CIPA are serious. Anybody found to be:
- hindering, obstructing or disobeying a person in control of a Critical Infrastructure;
- gaining access to critical infrastructure without the consent of the relevant security manager of that Critical Infrastructure;
- damaging, endangering or disrupting Critical Infrastructure or threatening the safety or security at Critical Infrastructure or part thereof;
- threatening to damage Critical Infrastructure; or
- colluding with or assisting another person in the commission, performance or carrying out of an activity referred to above,
would be found guilty of an offence punishable by a fine and/or imprisonment. Whilst these actions on private property ordinarily attract criminal sanctions, the implications of interfering with strategic property ups the anti for the average criminal and one would hope, carry stiffer penalties and swifter action.
From the above, it can be seen that CIPA envisions a more transparent and open process for the application, assessment and declaration of Critical Infrastructure.
It is therefore notionally possible for private sector contractors as well as the state to apply to have a specific construction project or site declared Critical Infrastructure. If successfully implemented, the enforcement of CIPA , could assist in staving off infrastructure related crime in general and possibly construction site extortion.
The Critical Infrastructure Programme
It is not clear whether the Department of Trade and Industry (dti) are carrying out an independent initiative, but since late 2021 they are, in parallel it would seem to the initiatives under CIPA, conducting what is termed the Critical Infrastructure Programme (CIP).
This programme is directed at the private sector which is invited to participate in an incentive scheme for the development of critical infrastructure for the bulk supply of water, electricity and access roads. These projects can, on application and subject to qualifying criteria being met, attract grants of between 10 and 30% towards development costs. Notably there is (subject to applicable caps and criteria) an incentive of up to 100% for support towards strategic infrastructure for distressed municipalities.
Leaving aside the incentive opportunity, it would stand to reason that if the DTI regarded the infrastructure sponsored under such a programme to be critical infrastructure it may similarly, against appropriate motivation, enjoy protection under CIPA such that an enterprising infrastructure developer might enjoy the benefits of the incentive scheme together with the protection of CIPA.
The National Infrastructure Plan
During October 2022, the Minister of Public Works, gazetted phase 2 of the Draft National Infrastructure Plan (Draft NIP 2050 Phase 2), for public comment by 9 December 2022. We will discuss certain provisions in the section entitled "Cross-Cutting Support to the Infrastructure Plan - Crime and Corruption".
In the Draft NIP 2050 Phase 2, it is submitted that the challenges posed by infrastructure related crime in South Africa appears to be more severe than in other jurisdictions, therefore, the continued reassessment of risks and strategic responses becomes a necessity.
Four types of infrastructure-related threats are identified, as follows -
- "Crime affecting the provision of infrastructure, especially corruption in the procurement process and in the extortion of service providers";
- "Crime directed at infrastructure itself, especially theft of copper and steel";
- "theft of infrastructure services, such as non-payment of electricity or water"; and
- "Crime directed at users of infrastructure".
The fact that the interest and incentives of State-Owned Enterprises (SOEs) are not aligned with that of the public is highlighted as a factor that contributes to the high levels of infrastructure-related crime. The Draft NIP 2050 Phase 2 stipulates that the cost of these crimes are borne by the public rather that the state as the owner of the infrastructure and because SOEs are not cost-minimising businesses, they tend to under-invest in the protection of their assets.
The Draft NIP 2050 Phase 2 also makes no secret of the fact that extortion usually occurs at the point of delivery and this could lead to delays, non-delivery of products and higher project costs.
The Draft NIP 2050 Phase 2 proposes, inter alia, that there must be a demonstrated capacity to successfully identify, arrest and prosecute offenders, there must be integrity of internal controls in institutions that own or provide infrastructure to reduce corruption and complicity with criminality and infrastructure must be physically secured and protected from violence, vandalism and theft.
It is envisioned that by enforcement of the NIP, the aforegoing will be achieved as follows -
- state infrastructure entities will be held to account in having robust internal controls to reduce the opportunity for corruption and collusion between syndicates and rogue state representatives
- owners of infrastructure will be required to protect it from theft and destruction; and
- more technologically advanced strategies to protect infrastructure will be implemented.
There is evidently healthy synergy between CIPA, CIP and the NIP. The ever-growing threat posed by infrastructure related crime and construction site extortion syndicates will continue to negatively affect the economy and disturb public safety unless addressed.
It would seem, therefore, that recent legislation and policies in the form of CIPA, CIP and the NIP, could play a role in mobilising appropriate countermeasures to the scourges of mafia syndication and theft. Like many other great ideas, its proper implementation will be the true test of its effectiveness and of the resilience and capability of the relevant state institutions.
So, while we may feel pillaged and powerless, there does appear to be at least a plan afoot to create an environment in which the threats can be managed, and new infrastructure buds can blossom.
Jennifer Smit, Director and Head of Construction and Engineering & Kyle Grootboom, Associate Designate, Werksmans Attorneys. News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.