Picture: Armand Hough / African News Agency (ANA)
Prof. B. Dikela Majuqwana
On June 1, 2016, the Criminal Matters Amendment Act 2015 came into effect and a new set of infrastructure-related crimes were established and placed before an already overburdened criminal justice system.
The new act set out to define new bail conditions, sentences for law breakers and provided recommendations for jail terms of up to 30 years and fines on businesses of up to R100 million.
Criminalisation of certain acts leading to damage of public infrastructure was new.
All this was done to deter future offenders and to prevent such acts from recurring.
Many people at the time expressed varying opinions regarding the need for the Criminal Matters Amendment Act and whether it would help put an end to intentional damage to public infrastructure.
In favour of the act were many who felt it was time to deter offenders from carrying on as before without consequence.
For example, it is known that many protests often lead to damage to public infrastructure such as roads or school buildings.
Others felt that there are already many laws but these are failing to deter criminals because the justice system is ineffective.
According to this view, adding more layers of criminal legislation will not achieve the desired goal but will lead to a waste of scarce resources. There was a view that good leadership and management of public institutions will achieve more.
It is now exactly seven years since the Criminal Matters Amendment Act came into effect.
According to media reports there is now a sense that infrastructure related crime is not only on the rise but is a source of income for organised criminal gangs.
At the same time there is little sign that the legislation is acting as an effective deterrent.
The unrelenting power crisis and persistent load shedding have in part attributed to the sabotage of infrastructure belonging to Eskom and municipalities, including damage to electricity pylons, cable theft, and destructive acts at power stations.
Cellphone base stations are also experiencing rising levels of theft involving batteries and cables.
Nationwide, power lines are being dug up from underground and overhead power lines are being damaged by izinyoka who illegally connect informal settlements.
The most shocking development is the total destruction of the railway network since the Covid-19 pandemic in 2020. Many lines operated by the Passenger Rail Agency of SA (Prasa) and Transnet have been stripped away and the Transnet fuel pipeline is a regular target of damage by thieves.
The total cost of this damage is estimated to amount to tens of billions of rands per annum.
This excludes the cost of efforts to stem this destructive criminal wave such as the legislation and administering justice, or measures such as banning scrapyards or enforcing related municipal by-laws.
By the look of things, all these are wasted efforts if no deterrent effect is achieved.
Some people are of the view that specialised infrastructure crime courts are required to give the law some teeth. However, such courts also entail additional costs, including providing for space to accommodate the criminals in jail.
A vast infrastructure dedicated to infrastructure protection may have to include specialised police units. Above all, it will take time for all these things to be set up and to become operational.
The wave of criminality relating to infrastructure is not an isolated development. It is accompanied by similarly negative developments in other directions.
There is increased use of guns by criminals to hijack cars, invade homes and kill occupants, hijack goods vehicles such as trucks, and so on.
There is also evidence of cross-border criminal activities from countries such as Zimbabwe or Mozambique.
In some instances, some criminals have been found smuggling explosives into South Africa and some of these have been used to destroy ATMs at banks or to hit cash-in-transit (CIT) vehicles or in illegal mining activities by zama-zama criminals.
In other words what South Africa must deal with is not a case of isolated infrastructure-related crimes but the emergence of an all-engulfing mega-crime culture as a way of life in South Africa.
In that case the administration of justice for crimes relating to the Criminal Matters Amendment Act should be seen as part of an integrated response to build awareness against criminality; engage in prevention measures; put into place effective systems for detection; and, finally, to take corrective measures such as imposing jail terms or fines.
But given the huge gains that are apparent in the criminal economy -- now estimated in the billions -- fines or jail terms may not have the desired effect.
What is a R100m fine if the crime leads to a tender award worth R1 billion or more? Nothing.
What is perhaps deserving of a deeper look is the combination of the political and economic environment that leads to this latest wave of criminality and how it came about.
South Africa's economy has not grown at a rate that is acceptable to meet the expectations of the National Development Plan (NDP) over the past decade.
The NDP stipulated a GDP growth rate of 7% or higher but in reality the growth rate has been consistently below 3%.
The NDP was the legacy of President Jacob Zuma but his term was later labelled as “nine wasted years” when President Cyril Ramaphosa took over from him in 2018.
Meanwhile, the National Planning Commission (NPC) has been missing in action.
I would like to think that, rightly or wrongly, responsibility for development of the physical economy and accounting for the integrity of national critical infrastructure and related systems resides within the NPC or a body within it.
I include accounting for national reporting on fixed capital formation in the economy as a whole and an appreciation of the threats such as crime or terrorism and mitigation measures.
Therefore, it goes without saying that creating public awareness of threats to infrastructures, measures to prevent any harm, oversight and detection and making determinations on corrective measures in courts of law should to a great extent involve some role for the NPP.
For example, the decision to limit fines to a mere R100 million for businesses involved in intentionally damaging infrastructure is totally inadequate.
The actual amount should depend on the context and the extent of damage and its consequences, both known and unknown.
And that is as far as the institutions of the state are concerned. In tandem with public awareness, public campaigns and initiatives should be developed to protect critical infrastructure at the local, regional, and national levels.
Under normal circumstances political parties should also be taking up this campaign, especially at the level of ward councillors in municipalities.
* Majuqwana is a founding member of the National Union of Scientists and Engineers
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