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19 November 2018 Photo Sonia Small
On Statues and Statutes MT Steyn statue creates a vital precedent
Prof Francis Petersen, UFS Rector and Vice-Chancellor

Opinion article by Prof Francis Petersen

Every morning on my way to the office, I pass this imposing figure. Elevated on a granite plinth in front of the Main Building of the University of the Free State’s Bloemfontein Campus, cast in bronze, more than twice the size of a normal person, the statue of President Marthinus Theunis Steyn is by all accounts an impressive work of art.
  
Why such a contentious figure?

Unlike Cecil John Rhodes, who has become the embodiment of colonialism in South Africa, history paints the last president of the independent Orange Free State a little more amicably: MT Steyn was an outspoken anti-imperialist, a pacifist who tried until the very end to avoid war with Britain, a humanitarian who did a lot for Boer women and children after the war.
  
However, he was also the leader of a republic that didn’t acknowledge the rights of all its ethnic groups. From a modern-day human rights perspective, his Free State was decidedly unequal and unjust.
  
In its recent report, the ministerial task team on the transformation of the heritage landscape points out that statues are never just “innocent pieces of architecture.”  They embody a strong “symbolic power” and project “the foundational values of the state and those in power.” It’s never about the persona alone, but about the totality of values he/she represents.

Situated where it is – in front of the building housing the university’s executive – the question is whether we, as the leadership of this institution, align ourselves with these values.

And if there’s any doubt, how should we go about to consider changing the status quo?

Removal of statues in the past

As South Africans, we are acutely aware of how unhappiness about statues and what they represent have been dealt with on our university campuses in the past.

Statues have been defaced, damaged, and toppled by protestors – not only in South Africa, but around the world. At the University of the Free State (UFS), it also happened with the statue of CR Swart on the Bloemfontein Campus; the same as with the statue of Cecil John Rhodes at the University of Cape Town.

There is of course a legitimate driving force behind students’ conduct: frustration about the perceived slow pace of transformation.
  
However, what should also be considered, is the heritage legislation that is in place to protect symbols that hold historical value and significance – specifically aimed at preserving our country’s cultural heritage for all its citizens.

Process followed

At the UFS, discussions regarding the possible repositioning of the MT Steyn statue date as far back as 2003. In January this year, our Integrated Transformation Plan (ITP) was launched, and the statue was identified as a priority within the work stream dealing with ‘Names, Symbols and Spaces.’

At a student engagement earlier this year, the student community, through the Student Representative Council (SRC), once again asked for the statue to be removed. It was clear that it made certain students feel unwelcome because it represented a period in history that they did not feel part of.

I realised the urgency of the matter and appointed a Special Task Team to fast-track the review of the statue’s position. Four options had to be considered during the review process: (i) retention of the statue in its current position; (ii) reinterpretation; (iii) relocation on campus; (iv) relocation to a site off campus.

The task team, made up of representatives of various campus communities, appointed an independent heritage consultant to conduct a Heritage Impact Assessment (HIA) as prescribed by the heritage legislation, consulted widely, and gathered qualitative data. This encompassed a two-month-long public participation process.

Great effort went into inviting people to comment on the position of the statue, like erecting a giant reflective column in front of the statue, effectively erasing it out from a frontal view of the Main Building. Seven questions in English, Afrikaans, and Sesotho about the statue and the person it represents, cement benches to invite reflection, and a suggestion box for comments completed the picture. In addition, I also had various individual meetings with relevant role players, including members of the Afrikaans community on campus, the SRC, and alumni.
  
Robust discussion sessions were facilitated on campus, and various opinion articles were carried widely in the media.

As there is no precedent for such a process under current South African legislation, the task team was guided at all times by principles of fairness, inclusivity, and objectivity.

The Special Task Team has now presented the university’s executive with a report, and a final decision on the position of the statue will be made during a meeting of the University Council on 23 November 2018.

What we learned

I have repeatedly been asked whether the time, effort, and resources we’ve poured into the process around deciding the statue’s future have been worth it. My answer is consistently a resounding “yes”. 

Through this process, everyone involved with our university were given the opportunity to express their opinions on this aspect of its future. It was a chance to really listen to one another.

Where discussions sometimes became one-sided and overbearing, we could use it as an opportunity to lay down the rules for respectful debating as a quid pro quo for future discussions on any matter.

In short: The two-month public participation period was a fruitful time of discussion, reflection, and communication. 

A time of deliberate stocktaking on the values which are important for all our communities.
  
Road ahead

Whatever the final decision on the Steyn statue, it is bound to dissatisfy some. That much is unavoidable. 

However, I believe that this should not inevitably lead to division on our campuses. I see the wake of the statue journey as an opportunity to foster a new university citizenship based on the value of caring – a value that we all treasure.

The past few months have given us a chance to think deeply about what it truly means to care; also, to reflect on how we should apply this value in order to be a university where equality, social justice, tolerance, and forward-looking is actively lived out every day. 

A place where everyone truly feels welcome – and involved.

News Archive

The failure of the law
2004-06-04

 

Written by Lacea Loader

- Call for the protection of consumers’ and tax payers rights against corporate companies

An expert in commercial law has called for reforms to the Companies Act to protect the rights of consumers and investors.

“Consumers and tax payers are lulled into thinking the law protects them when it definitely does not,” said Prof Dines Gihwala this week during his inaugural lecture at the University of the Free State’s (UFS).

Prof Gihwala, vice-chairperson of the UFS Council, was inaugurated as extraordinary professor in commercial law at the UFS’s Faculty of Law.

He said that consumers, tax payers and shareholders think they can look to the law for an effective curb on the enormous power for ill that big business wields.

“Once the public is involved, the activities of big business must be controlled and regulated. It is the responsibility of the law to oversee and supervise such control and regulation,” said Prof Gihwala.

He said that, when undesirable consequences occur despite laws enacted specifically to prevent such results, it must be fair to suggest that the law has failed.

“The actual perpetrators of the undesirable behaviour seldom pay for it in any sense, not even when criminal conduct is involved. If directors of companies are criminally charged and convicted, the penalty is invariably a fine imposed on the company. So, ironically, it is the money of tax payers that is spent on investigating criminal conduct, formulating charges and ultimately prosecuting the culprits involved in corporate malpractice,” said Prof Gihwala.

According to Prof Gihwala the law continuously fails to hold companies meaningfully accountable to good and honest business values.

“Insider trading is a crime and, although legislation was introduced in 1998 to curb it, not a single successful criminal prosecution has taken place. While the law appears to be offering the public protection against unacceptable business behaviour, it does no such thing – the law cannot act as a deterrent if it is inadequate or not being enforced,” he said.

The government believed it was important to facilitate access to the country’s economic resources by those who had been denied it in the past. The Broad Based Economic Empowerment Act of 2003 (BBEE), is legislation to do just that. “We should be asking ourselves whether it is really possible for an individual, handicapped by the inequities of the past, to compete in the real business world even though the BBEE Act is now part of the law?,” said Prof Gihwala.

Prof Gihwala said that judges prefer to follow precedent instead of taking bold initiative. “Following precedent is safe at a personal level. To do so will elicit no outcry of disapproval and one’s professional reputation is protected. The law needs to evolve and it is the responsibility of the judiciary to see that it happens in an orderly fashion. Courts often take the easy way out, and when the opportunity to be bold and creative presents itself, it is ignored,” he said.

“Perhaps we are expecting too much from the courts. If changes are to be made to the level of protection to the investing public by the law, Parliament must play its proper role. It is desirable for Parliament to be proactive. Those tasked with the responsibility of rewriting our Companies Act should be bold and imaginative. They should remove once and for all those parts of our common law which frustrate the ideals of our Constitution, and in particular those which conflict with the principles of the BBEE Act,” said Prof Gihwala.

According to Prof Gihwala, the following reforms are necessary:

• establishing a unit that is part of the office of the Registrar of Companies to bolster a whole inspectorate in regard to companies’ affairs;
• companies who are liable to pay a fine or fines, should have the right to take action to recover that fine from those responsible for the conduct;
• and serious transgression of the law should allow for imprisonment only – there should be no room for the payment of fines.
 

Prof Gihwala ended the lecture by saying: “If the opportunity to re-work the Companies Act is not grabbed with both hands, we will witness yet another failure in the law. Even more people will come to believe that the law is stupid and that it has made fools of them. And that would be the worst possible news in our developing democracy, where we are struggling to ensure that the Rule of Law prevails and that every one of us has respect for the law”.

 

 

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