Just few years ago, the idea that disruptions and work stoppages could be orchestrated by the now-infamous construction mafia in South Africa were unforeseeable. The already beleaguered construction sector is trying to proactively avoid these situations, according to Aadila Mahomed, an associate at MDA Construction & Technology Attorneys. This is part 2 of a two-part series.

Part 1

Ways to handle the construction mafia. Image credit: Phnom Penh Post

Ways to handle the construction mafia. Image credit: Phnom Penh Post

Due to an apparent grey area in South African law, Mahomed says it is important to cover some material considerations at the contracting stage:

  • What plans and safety procedures do both parties have in place in the event of disturbance at the site?
  • Will the contractor be granted an extension of time where the works are disrupted by unrest?
  • Will the contractor be paid more where additional costs are incurred as a result of work stoppages caused by this unrest?
  • If legal action needs to be instituted against perpetrators, who will be liable for the costs of this action?

MDA Attorneys also recommends implementing the following measures to ensure the safety of the site and the works:

  • Ensure that the site is properly zoned off, with any entry and exit points subject to access control procedures.
  • Have a safety and evacuation plan in place.
  • Ensure that an efficient communication system (a WhatsApp group, for instance) is in place in the event of an emergency.
  • Put additional security in place around the site.
  • Addressing this issue before commencement of the works will save the parties time and money and may reduce the prejudice suffered by both parties for a situation which is out of their control.

Not all eventualities are covered by the law

MDA Attorneys recently acted for a client where obstructions were initiated by contracted parties. Unhappy with the payment arrangements that were outlined in the initial contract, contractors blocked access to the site and intimidated workers. MDA Attorneys obtained an urgent interdict which not only specified every possible behaviour that would constitute intimidation or delay but also included specific actions and remedies if the provisions were not complied with. The requirements of urgency were clearly outlined and as a result, delays on account of the actions of the contractors were drastically minimised.

Mahomed concludes: “Not addressing risk factors in agreements can leave the parties in limbo in terms of accountability, legal action, extension of time and additional payments to be made. This, in turn has a ripple effect on the already struggling construction industry. Parties need to save time and money as far as possible.”