Construction mafias are currently targeting infrastructure development, business entities and construction sites by extortion (Okuhle Hlati ‘Bid for special police unit to tackle “construction mafia” welcomed’ (www.iol.co.za, accessed 2-12-2023)). The mafias’ claim arises from the Preferential Procurement Regulation, 2017 which provides that 30% of a construction development project has to benefit the community of where it is allocated by way of employment (Wayne Pocock ‘A Legal Remedy to Combat the Rise of the Construction Mafia’ (https://bridgecity.org.za, accessed 2-12-2023)). They approach the person who was awarded with a development project and demand money (extort), which will be dealt with in terms of the amount allocated. If this person does not submit to their demands, then other streams of crimes like kidnapping, assault, threats, murder, racketeering, torture, embezzlement, public violence, corruption and treason occur. This criminal trend is gaining momentum in South Africa, and this imposes a direct threat to the goal of the National Infrastructure Plan 2050.

From 2016 to 2019, business entities affected by the construction mafias have approached South African courts seeking a possible legal remedy. Over 50 interdicts were granted (South African Cities Network ‘Keep the bus moving: SMME inclusion in the construction sector’ (www.sacities.net, accessed 2-12-2023)). Nevertheless, some orders are not effective since the intimidation continues and the South African Police Service (SAPS) cannot effect arrests on these mafias. If they are arrested, they will be released. Pocock (op cit), referencing Joubert NO and Others v Maranda Mining Company (Pty) Ltd and Others [2010] 2 All SA 67 (GNP) at para 26 and Johannesburg Municipal Pension Fund and Others v City of Johannesburg and Others 2005 (6) SA 273 (W) at para 8, states that:

‘The construction firm must establish its real alternatively prima facie right to the interdictory relief sought and that there has been an infringement of this right. The private construction company has the legal right to conduct its business affairs without interference or intimidation including without harm to its employees and contractors. It also has the legal right to use and enjoy the construction site.’

However, the mafias raise the right to freedom of assembly in terms of s 17 of the Constitution to justify the gatherings before construction sites (Pocock (op cit)). In Satawu and Another v Garvas and Others 2013 (1) SA 83 (CC) as cited by Pocock (op cit), the court held that s 17 of the Constitution provides anyone with a right to freedom of assembly. Moreover, if such gathering is found to be unlawful then they have to be approved by the local authority according to the Regulation of Gatherings Act 205 of 1993 (Pocock (op cit)). In all cases of construction mafias protests are unlawful. These mafias have no legal right to claim 30% of the amount awarded during tender processes as they have misinterpreted the Preferential Procurement Regulation (Pocock (op cit)). Some suspect that there is political influence in this issue and law enforcement is afraid for their lives. Furthermore, should it be ruled that their arrest was unlawful, then the Minister of Police and the SAPS will be sued meaning more financial loss for the government.

Extortion by construction is a serious crime that needs special attention from the government. All the government departments and entities, private entities, and society needs to join hands to curb this crime and not all the reasonability should be left to the SAPS. Should this type of crime continue without government intervention then the country will be lawless, more investors will walk away, the unemployment rate will keep increasing, the economic development will keep decreasing and the Bill of Rights in the Constitution will be undermined. In fact, the Constitution of this country is under threat. The Preferential Procurement Regulation has to be suspended as a legal framework that deals with tender processes until an appropriate remedy is established. All the stakeholders, including these mafias must arrange a meeting where the 30% claim can be explained in full and what procedure needs to be followed. Hopefully, a proper solution can be found between parties, and we can find a way forward as a country. Roughly R 68 billion in the South African economy has been lost as a result of the loophole created by Preferential Procurement Regulation (Bianke Neethling ‘Construction mafias cost South Africa R 68 billion’ (https://dailyinvestor.com, accessed 2-12-2023)). It is time that the National Assembly pulled the plug. If they lack strength, then they can just press the panic button to protect the remains of our skeletal government.

Thabo Elias Lekoko LLB LLM (NWU) is a candidate attorney at North-West University Potchefstroom Law Clinic. Thabo Jacob Sebatane Dip Legal Studies (Oxbridge Academy) Dip Project Manager (Cum Laude) (Oxbridge Academy) BA Police Practice Hon Police Practice LLB (STADIO) is a colonel in SAPS at Potchefstroom and Provincial Commander Organized Crime in SAPS North West Province.

This article was first published in De Rebus in 2024 (Jan/Feb) DR 5.