Construction mafia face two new laws

TheCritical Infrastructure Protection Act, 8of 2019 (Cipa) and the National Infrastructure Plan(NIP), tobe gazetted underthe National Infrastructure Development Act,23 of2014,are twolaws that couldbe essentialin the fight against,and prevention of, constructionsite extortion syndicates,alsoknownasthe “construction mafia”

Ciparepeals theNational KeyPoints Act,102of 1980in its entirety andwhile not being fully operational as yet, the majority of its provisions came into effect on April 30 2022 with the fullact to be proclaimed lawin due course. Unlikeits predecessor, Cipadoes notfocus merely onsecuring aselect list oflandmarks, butrather aims to secure sites, projects and developmentsin the interest of the economy, public safetyand continuous basic public services.

To furtherits aims,Cipa fallswithinthepurviewofthe police department,not the defence department.

Whilethe policeminister stillhasadiscretionindeclaringa sitecriticalinfrastructure (asdefined inCipa), Cipa provides forinterested partiestoapplyfor asitetobe declared critical infrastructure anda multidisciplinary council (theCritical Infrastructure Council)to advise and make recommendations to the minister.

The ownerof thecritical infrastructure, in most instances the state, is responsible forensuring necessary measures are in place to protectandsecurecriticalinfrastructure, butthe policecommissioner can andshould (in the event thatthe owner fails tosecure thesite) takethis responsibilityon itself,atthe cost of the owner. The ministerpublished,forpubliccomment, theInterim Critical ment and enforce Cipa. Cipa contemplates that the Critical Infrastructure Council should be madeup of,inter alia,variousdelegates fromtheJustice, Crime Prevention and Security Cluster aswell as the department of public works. Accordingly, consideringalloftheaboveandseeing that Cipa envisions a more transparent process for the identification and declaration of critical infrastructure andpunishment byfine and/or imprisonment of a breach ofthe provisionsof Cipa by, inter alia:

● Hindering, obstructing or disobeying a person in control ofa criticalinfrastructure in taking in relation to the security of any critical infrastructure;

● Gaining access to critical infrastructure without the consent of thesecurity manageror personin controlof that critical infrastructure; ment ofCipa andthe regulationsthereunderashighlightedabove, couldassistin staving off construction site extortion.

Thepublicworksminister gazetted phase 2 of the Draft National Infrastructure Plan (DraftNIP 2050Phase 2)for public comment by December 9 2022.

In theDraft NIP2050 Phase 2, it is submitted that the challenges posed by infrastructure relatedcrime in SA appearsto be more severe than in other jurisdictions; therefore, the continued reassessment of risks and strategic responses becomes a necessity.

Four typesof infrastructure-related threats are identified, as follows:

Infrastructure Regulationsin April 2022 (Interim Regulations). In terms of the Interim Regulations, theminister, inter alia establishes the Critical Infrastructure Council andsets outits functions and procedures; and establishesand setsout thefunctions of theCritical InfrastructureProtectionRegulator, a bodythat isto ensurethe maintenance of the administrative systems and procedures necessary to imple-

● Damaging, endangering or disrupting critical infrastructure or threatening the safety or security atcritical infrastructure or part thereof;

● Threatening todamage Critical Infrastructure; or

● Colluding with or assisting anotherperson inthecommission, performance or carrying out ofan activity referred to above.

Itis possibleforcontractorsand/or thestate toapply to have aspecific construction project orsite declared critical infrastructure.

If successful,the enforce-

Curbing Corruption

● Crime affecting the provision of infrastructure, especially corruption in the procurement process andin the extortion ofservice providers;

● Crime directed at infrastructure itself, especially theft of copper and steel;

● Theft of infrastructure services, such as nonpayment of electricity or water; and

● Crime directedat usersof infrastructure.

That theinterestd and incentives ofstate-owned enterprises (SOEs) are not aligned with that of the public is highlighted asa factor that contributes to the high levels of infrastructure-related crime.The DraftNIP2050 Phase2 stipulatesthatthe cost ofthese crimesare borne by thepublic rather that thestate asthe ownerof the infrastructure and because SOEs arenot costminimising businesses,they tend to underinvest 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, nondelivery of products and higher project costs.

The DraftNIP 2050Phase 2proposes, interalia,that there mustbe ademonstrated 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 physi-

CIPA FALLS WITHIN THE PURVIEW OF THE POLICE DEPARTMENT, NOT THE DEFENCE DEPARTMENT

cally secured and protected fromviolence,vandalismand theft.

It isenvisioned thatby enforcement ofthe NIP,the aforegoing will be achieved as follows:

● Stateinfrastructureentities will beheld toaccount in having robust internal controlstoreducetheopportunity forcorruption andcollusion between syndicates and rogue state representatives;

● Owners of infrastructure will be requiredto protect it from theft and destruction; and

● More technologically advanced strategies to protect infrastructure will be implemented.

There isclear synergy between Cipaand theNIP as ventilated bythe DraftNIP 2050 Phase 2.

The ever-growing threat posed by construction site extortion syndicateswill continue to negatively affect the economy and endanger public safety unlessit is subdued with the appropriate countermeasures.

Inthis articlewehighlightedhowCipa andtheNIP, inits currentform, couldbe used as the appropriate countermeasures but,like many otherthings, itwill all depend on the resilience and strength of state institutions.