A tender for specialised security services for an anti-land invasion squad in KwaZulu Natal has raised questions about the legality and constitutionality of the proposed unit. The private company will be expected to – among other functions – predict the occupation of government assets and land by “political opportunists”, “hold fort” in the absence of government security agencies as well as gather intelligence on private citizens. By MARIANNE THAMM.
Government Tender Bulletin, 16 January, Volume 595, Page 139:
Between routine calls for suppliers for water quality analysis, plumbing, building, stationery and printing supplies, it is an “invitation for proposals” by the KwaZulu-Natal Department of Human Settlements for “specialised security services for an anti-land invasion unit” that alarmingly pops out on page 139, mostly for the securocratic flourish of its language.
This unit, the tender invite continues, would be expected to, among other duties; “conduct human intelligence and social engineering”; “understand social dynamics that trigger violent service delivery protests and the influence of political opportunism in such situations and be able to develop counter-measures”; “should have the capacity to ‘hold fort’ in cases of land invasion where there is an absence of government security agencies and mobilise support from government security forces whilst taking charge of the situation”; and “in some instances the required Service Provider will be required to provide rapid response security services and or special security rescue operations to protect government assets and personnel (our italics) including the safety of the public.”
An added advantage, according to the call for the three-year contract, would be “an exhibition of an in-depth understanding of the inner workings and psychology of the Criminal Justice Framework and the functioning of the South African Securities Agencies; the ability and track record of working with the South African Security Agencies in land invasion or similar situations.”
Several legal and security experts as well as human rights NGOs who have had sight of the tender have suggested that it is “highly unusual” for a non-state organisation to combine intelligence, conflict resolution and enforcement in relation to the issue of land invasion, particularly of government-owned property and also in a preventative rather than reactive capacity. The “open tendering” for this service provider, many felt, was also surprising.
Guy Lamb, Director of the Safety and Violence Initiative at UCT, said it appeared as if the KZN Provincial Government was looking to secure the services of “a new type of hybridised” private security body to outsource a politically unpalatable issue.
The tender, he added, had all the hallmarks of an elaborate counterinsurgency programme.
“Some mining companies in Central Africa have used private security companies to respond to groups that invade or occupy mining land, but this has been a relatively unsophisticated level. A successful bid will likely have to be a consortium of the suit-and-tie political risk consultancy, armed response security guards, former intelligence operators and local power-brokers and henchmen.”
Responding to questions from Daily Maverick, MEC for Human Settlements and Public Works in KZN, Ravi Pillay, said that the interpretation of the tender as some “secretive programme” was incorrect and that it was a public tender.
“Put simply, it is intended to provide a cost-effective way of securing vacant land and identifying risks in respect of invasions,” he said.
Pillay added that land invasions often obstructed the implementation of planned housing projects and charged that “the conventional wisdom” was that there was often an attempt at queue-jumping by organised shack lords.
“You will note that the advert includes the requirements of key skills such as dispute resolution, social facilitation and an understanding of the constitutional framework. Any final award would be regulated by an agreement that will be scrutinised by our legal department for legal and constitutional compliance. Any risk would be mitigated by appropriate checks and balances,” said Pillay.
Professor Marie Huchzermeyer of the WITS School of Architecture and Planning – and one of the country’s leading academic experts on land, informal settlements and housing – said the tender appeared to be a form of “influx control” and “a security solution to a socio-economic problem”.
In a case where the service provider might be required – as is set out in the KZN tender – to “hold fort” with regards to unoccupied land that might be invaded while state security agencies were deployed, the question was raised of who exactly would be held accountable should events become violent and citizens were injured in the process, she said.
Speaking to this issue, Pillay offered that the service provider would not be expected to “engage in any action that [was] the domain of the police services” and that key skills would be “social facilitation and dispute resolution”.
However, later Pillay stated “it is clear the SAPS doe not have the capacity to deploy members for this kind of preventative intervention. SAPS’s priority is serious crime”.
It is interesting to note that the tender is for KwaZulu-Natal where the provincial government tabled the Elimination and Prevention of Re-Emergence of Slums Act, 6 in 2007, and which was declared unconstitutional in 2009 after an application brought by the Abahlali baseMjondolo Movement South Africa. (The movement is highly active in the province.)
Abahlali argued that the act did not deal with housing, but with land and land tenure – matters which fell outside the legislative competence of the province. It also argued that a section of the act that required owners of property and municipalities to evict unlawful occupiers in certain circumstances was inconsistent with section 26(2) of the Constitution.
The private security industry in South Africa derives powers essentially from the Criminal Procedures Act 51 of 1977, which makes provision for staff, as a “private person”, to make an arrest without a warrant. Security staff may, in certain circumstances, even use deadly force in order to affect an arrest if there is resistance.
There are prescriptions to these powers in that private security officers derive their authority through acting as “agents” of property owners. However, security companies may face civil claims if arrests or searches are conducted outside of the law, which brings into question exactly who would be accountable should events become violent or citizens are injured or killed during an encounter with the private service provider protecting government property as this tender proposes.
While private security companies have been employed to protect government property – at National Keypoints such as airports for example – this has often been in conjunction with SAPS.
It would be possible, say some, if the state positioned itself as a property owner to outsource protection of that specific property as is being envisaged in the tender.
According to Dr Johan Burger, Senior Researcher with the Institute for Security Studies, Governance, Crime and Justice Division, there are three potentially toxic elements to this specific tender.
“The first is that it appears that this will be a unit that will be required to protect government-owned as opposed to privately-owned land or property, the second is that is suggests that it should be able to obtain intelligence on private citizens which is illegal, and thirdly the question is whether it is okay for the state to outsource this law-enforcement function in this manner,” said Burger.
He questioned whether the same rights would apply to private security operators protecting public property as those granted in the protection of private property.
“Does this mean that the state thinks it does not have the capacity to do so?” he asked.
The wording for the tender points to the fact that the Department is looking for a service provider with a unique “inside track” of the larger socio-political factors at play in the province – and these might be related to Abahlali’s active presence in the region.
“The successful applicant should display an in-depth understanding of land invasion in the South African context in general, and land invasion in KZN in particular, including the causal factors of land invasion, social and political costs of land invasion and the typologies of land invasion,” the tender reads.
Under the heading “Conduct and Situation Development Monitoring” it states, “The required Service Provider should possess experience in the coordination and management of intelligence-driven land monitoring and protection strategies with traceable references in similar assignments” as well as “possess social facilitation skills in dealing particularly with violent situations and the development and implementation of post-conflict settlement support. The incumbent should develop land invasion information collection management cycle to coordinate and integrate the efforts of all collection units at a provincial, district, regional, and local levels.”
The province – which will sign a bi-lateral agreement with the preferred bidder – expects the contractor to “provide timely and accurate locations of land invasion areas. This should provide land protection authorities the targeting data they need to effectively counter land invasion attempts.”
While open to interpretation, “targeting data” suggests the possibility that the private service provider would be required to gather intelligence on private citizens, which would be illegal and highly irregular.
Apart from the above, the security company would also be required to be “well-versed with social engineering techniques and understand social dynamics that trigger violent service delivery protests and the influence of political opportunism in such situations and be able to develop counter-measures within the ambit of the National Criminal Justice Framework and the Constitution of the Republic of South Africa”.
The labelling of land invasion as an act of “political opportunism” is an apparent oversimplification of what Huchzermeyer has pointed out is more of a socio-economic challenge and also reflects the underlying intention of the tender as one of “enforcement” rather than “engagement”.
Guy Lamb suggested that the KZN Provincial Government was “looking to hire a company that combines the muscle for forced evictions, a silver tongue for difficult negotiations, the cloak-and-dagger of intelligence gathering and subterfuge, and an extensive roller deck of local contacts and resources, all to prevent and respond to land invasions.”