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14 March 2019 | Story Opinion Article by Prof Francis Petersen | Photo Sonia Small
Prof Francis Petersen
Prof Francis Petersen, Rector and Vice-Chancellor of the UFS.

2019 is the year of the national general elections in South Africa – 8 May is when South Africans will have an opportunity to vote and to impact change, hopefully for the better.  But the beginning of 2019 saw the resurfacing of student protests, mainly driven by issues of registration, challenges associated with the National Student Financial Aid Scheme (NSFAS), student accommodation, safety of students (off-campus), insourcing, and various other issues influenced by local institutional context.
  
Challenges for university vice-chancellors

Our Constitution promotes protest, but emphasises the peaceful nature thereof, and that it should not infringe on the rights of others or damage property.  However, the protests experienced by the majority of higher-education institutions in South Africa in 2019 was exactly the opposite – disruption of classes, intimidation and victimisation, disrespect and often destruction of property.  A notion or approach of almost entitlement, even if the university management was willing to engage and was constantly open to assess ways and means to resolve these issues.  The drive for these protests was short-term gains, totally divorced from the long-term implications on the institution’s welfare.  This puts the university management under enormous pressure, sometimes feeling exposed and alone in ensuring that the institution remains sustainable – financially, as well as from an infrastructure and human resource perspective.

There is no doubt that the upcoming elections are used for political lobbying, tactical manoeuvring, and undermining to demonstrate political muscle – all playing out on our university campuses and to be managed by university vice-chancellors (VCs) and their executives.

Are universities not the pillars of knowledge in society, the providers of human capital and new knowledge to ‘lubricate’ our economy, the delivery of the next generation of professionals who will shape how our society, or a new South African citizenship should look like?  If this is the case, who are protecting our universities, who is standing with our VCs and university executives to ensure that our universities remain the beacon of hope for generations to come?  What is expected of VCs and university management in situations where there is a continual push for more, and if the response is not positive or immediate, protests, and in most instances violent and criminal behaviour. My personal view is not to securitise or militarise our campuses, but to resolve these issues through continuous engagement – but what if protests becomes violent and criminal?  What if disruptions challenge or threaten students, staff, infrastructure, and the academic project?  Student leaders seem to have forgotten the engagement with university leadership through a principle of ‘give and take’, always balancing short-term wins with the long-term sustainability and growth of the university.

Although universities often have their own internal disciplinary processes, these are slow, and the transgressors are often repeat offenders.  The sanctions are also in many cases restorative – which I believe it should, but to what end?

Help needed to ensure sustainability of universities 

We have seen how weak leadership, corrupt practices, and inadequate government funding have had a detrimental effect on the overall state of universities in the rest of the continent.  This has led to the outflow of excellent academics from the continent to elsewhere on the globe – a loss for the university and the continent!  Universities, although resilient, are also fragile as a system.  The protests associated with the #Rhodes and #FeesMustFall movements, together with the continued protests in 2019, run the risk of putting South African universities on a similar trajectory.  A fragile university system, when broken, will take decades to be restored.

Therefore, if universities are important institutions for society and the country, should there not be more concerted efforts from government and society to ensure that our universities remain strong and competitive? Although I do not offer a specific solution per se, should government, together with university leadership, staff, and students not be more vocal, thinking of a mechanism to curb and/or disallow immediate disruptions and the breakdown of infrastructure, and show visible support to university leadership in an effort to continue the academic project?  Our universities are performing extremely well against global counterparts, keeping in mind the current (and the past 10 years) South African economic growth and investment constraints with respect to infrastructure, research, and high-level scientific equipment – even a more critical argument to protect these national assets.

Academic project remains crucial

I am not for a moment belittling the issues raised by students and student leaderships – in fact, most, if not all of these issues, are legitimate.  I can understand the frustrations of the students – the slow pace of transformation, social integration, and often the lack of urgency in executing agreed decisions within the higher-education sector.  However, I am questioning the type of reaction or action exhibited by the students if, for similar legitimate reasons (through proper engagements), student demands cannot be completely met by university leaders.

In the final analysis, South Africa needs strong universities which are competitive – the country needs appropriate skills to enable and support the economy.  Also, universities need to listen to the student voice – deal with their concerns in a fair and socially-just manner; but as a sector with all its stakeholders, we need to ultimately respect the academic project and the infrastructure (physical and human) which support it.  We cannot afford party-political dynamics to ‘abuse’ the university campus in a way that can destroy the fibre of our higher-education system.  This will be catastrophic for South Africa, and I believe for the continent.

I call on government, voices in society, fellow students, student leadership, and staff to support university management openly, pro-actively and firmly, so that our universities remain places of intellectual engagement and discovery, places where different views are respected and heard, and by ‘jealously guarding’ the institutions as ‘country resources’, responding to all stakeholders’ concerns in a fair and just manner.

It is only then that universities ‘regain’ their rightful place in society, educating the next generation of scholars and professionals, advancing new knowledge, and purposefully disseminate and apply these to society – contributing to ‘lubricating the economy’ and to the betterment of the quality of life of our people! 




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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