Corporate South Africa is under siege. Businesses are engulfed in wave after wave of illegal protest action often marred by violence, harm and the destruction of property. One need look no further than the rise of the so-called ‘construction mafia’ who, after leading a campaign of terror for many years in KwaZulu-Natal, have infiltrated Gauteng and laid siege to construction projects and mining companies all over the province and surrounding areas.
The financial impact of these protests is catastrophic – no business can sustain the continuous onslaught of work stoppages, delays in completing works, threats and intimidation to management, and employees living in constant fear of their lives.
The mafia modus is simple: a mob of protestors is mobilised to demonstrate outside a construction site based on a concocted grievance mostly along the lines that the private company has flouted its statutory obligations – in other words, unproven allegations that the company hired labour or appointing sub-contractors from outside the local community. The mob representatives pass themselves off as the (self-appointed) local chapter of a ‘business forum’, or community, demanding that the private construction company spend 30% of the project sum through them by either employing their workforce or sub-contractors or procuring building materials as supplied by the mafia. Unsurprisingly, the cost of supply through the mafia is uncompetitive and almost always at extortionate rates.
The mafia modus finds its roots ostensibly in the provisions of the recently revised regulations to the Preferential Procurement Policy Framework Act, 5 of 2000 (PPPFA). The revisions require, inter alia, bidders of projects to the value of R30 million or more to sub-contract at least 30% of the value of the contract to exempted micro enterprises (EMEs) or qualifying small business enterprises (QSEs) or a small business as defined in the National Small Business Act, 1996. The mafia advances the PPPFA under a perverted mantra of radical economic transformation.
However, the mafia modus is flawed: the PPPFA applies to public enterprise (organs of state) only, and not to private business. The Master Builders Association recently distributed notices to all its members in Gauteng confirming same. Accordingly, there is no statutory obligation for a private business to allocate 30% of its works to contractors from the local area. Axiomatically, there is no legal basis underpinning the protestors’ grievance.
The overarching question is this: what steps can a private business owner take to combat the relentless onslaught of protest action and protect its commercial interests including the safety of its employees?
The strongest legal remedy lies in obtaining an urgent interdict. However, there are a number of challenges in bringing such an application. The most obvious being the citation of the unidentified respondents and, moreover, service of court process on these unknown persons. It is a well-established principle in our law that a litigant is not entitled to an order against which no cause of action is being made and calling upon that person to desist from some ‘unlawful’ action (ex parte Consolidated Fine Spinners and Weavers Ltd v Govender (1987) 8 ILJ 97 (D); Durban University of Technology v Zulu and Others 1693/16 P 2016 ZAZPHC 58). The inability of an applicant to identify the particular perpetrators does not afford any justification for granting an order against a number of people, including persons against whom no cause of action has been established. There is the further difficulty in execution of the court order once granted.
This article attempts to chart an easy-to-follow blueprint to overcome the practical exigencies of such a situation.
It is advisable that the company immediately engage with the protestors and request that they select a small number of representatives to participate in a formal meeting to discuss their grievances. This serves to gather intelligence for the purposes of launching the urgent application. It is imperative that a detailed minute and signed attendance register be kept recording details such as:
– The names of all the parties present (including identifying the appointed leader) along with all personal contact details such as ID numbers, cell numbers, work or home addresses and email addresses.
– The name of the association or forum or community to which the protestors belong, if any.
– The nature of the protestors’ grievances and list of demands on the private business.
– A record of all threats of intimidation, destruction of property, physical harm and so on, and the request for an undertaking that the protestors will cease all unlawful conduct.
The client must obtain proof of the unlawful protest and vandalism by way of colour photographs or even video footage. Confirmatory affidavits from witnesses will be vital.
All threats and acts of violence should be recorded and immediately reported to the local police commander and a case number must be obtained. Those threatened employees must complete statements. Unfortunately, there are branches of the South African Police Service (Saps) that refuse to engage protestors unless so directed by way of a court order. This reluctance justifies the need for interdictory relief (an interdict is a discretionary remedy where there is no adequate legal alternative).
An urgent application should be brought on an ex parte basis with the granting of a rule nisi (a court order that does not have any force unless a particular condition is met). The return date is usually allocated several months later, but the relief operates immediately. In bringing the urgent application, the applicant must satisfy the requirement for interim relief (Joubert NO and others v Maranda Mining Company (Pty) Ltd and others  2 All SA 67 (GNP) para 26; Johannesburg Municipal Pension Fund and Others v City of Johannesburg and Others 2005 (6) SA 273 para 8.).
Accordingly, the client will need to establish its real – or prima facie – right and that there has been an infringement of this right. This is obvious: the client has the right to, for example, conduct its business affairs without interference or intimidation to its employees.
In contrast, the protestors have no or very little right because, inter alia:
– The gathering would probably not be sanctioned by a local authority in terms of the Gatherings Act, 205 of 1993.
– Any constitutional right to protest is forfeited by the protestors in the event of vandalism, intimidation, destruction of property and threat of harm to people (section 17 of the Constitution read with South Africa Transport and Allied Workers Union and Another v Garvas and Others 2013 (1) SA 83 (CC) at para 68 & 84).
– The demand to appoint a local workforce (labourers or sub-contractors) through the PPPFA applies to public enterprises only and not to private business.
Naturally, each case will be determined on the merits of its own case.
It is important that a powerful notice of motion be framed. There is nothing more frustrating than succeeding with a strong case but faltering in the execution due to a toothless court order. The notice of motion must identify the correct categories of respondents, comprehensibly define the unlawful conduct to be interdicted, provide for suitable means of service and, more importantly, empower the relevant law enforcement departments to give effect to the court order.
Finally, following the granting of the court order, the Saps and the authorised security providers must monitor events on the ground. Any contemptuous conduct in breach of the court order is deemed inherently urgent and the client would be entitled to approach the court on an urgent basis to enforce the original order and commit the wrongdoers to imprisonment for contempt of court (Uncedo Taxi Service Association v Maninjwa And Others 1998 (3) SA 417 (E)).
In the partially borrowed words of the notorious mafia boss Al Capone:
“A smile can get you far, but a smile and a court order can get you further.”
We are living in tumultuous and uncertain times. There is a real danger that construction companies face financial ruin as a result of the coordinated attacks on their projects and operations by a growing number of racketeers. The dirty tricks deployed by the construction mafia should be combatted by approaching the urgent court at the earliest available opportunity.
Advocate Wayne Pocock is an independent professional practising at the Maisels Group of Advocates.