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03 July 2020 | Story Prof Francis Petersen and Motsaathebe Serekoane
Motsaathebe Serekoane,left, and Prof Francis Petersen.

The South African statue debate is back in the spotlight again, as statues deemed controversial or offensive are coming down in America and Europe during demonstrations against racism and police violence that have renewed attention on the legacy of injustices. This follows the death of George Floyd, an unarmed black man who died after a Minneapolis police officer kneeled on his neck for more than eight minutes. 

The world has witnessed the toppling of Confederate statues in San Francisco, Washington, DC, and Raleigh, North Carolina in the US, as well as a statue of slave trader Edward Colston in Bristol and the statue of slave holder Robert Milligan, which was removed from outside the Museum of London Docklands in the UK.  The statue of Paul Kruger on Church Square in Pretoria was again vandalised with red paint during a #BlackLivesMatter protest, as was the statues of Voltaire, a leading thinker and writer in France, and Hubert Lyautey, a French general and colonial administrator.

The attacks/hostilities against statues started in 2015 when the statue of Cecil John Rhodes at the University of Cape Town was torn down by students during the height of the #RhodesMustFall protest, which subsequently led to the #FeesMustFall protest that saw the statue of CR Swart at the University of the Free State being toppled a year later. 

The challenge in the South African context
The traditional definition and meaning of spaces inhabited by people (including temporarily) still renders some of the public spaces unwelcoming and excluding by virtue of their names, presence of symbols, and inscriptions. These spatial markers have a historical significance link with certain social identities or representation, and there is an increasing call for the reconfiguration of public spaces. It is argued that the symbolic landscape also requires change if a city/metro is to incorporate all its citizens and their histories into the fabric of an ‘imagined’ inclusive and just city.

The politics of symbolic representation has been at the heart of decolonisation and post-apartheid transformation. At stake in South Africa – with the historical legacy of segregation policies – is the competing and often conflicting notion of space, and the ideological notion of commemoration or memorialisation, coupled with the lack of shared collective memory and meaning of public representation. 

This calls for a pro-active approach towards the preservation and conservation of heritage resources material. In line with the National Developmental Plan 2030 (NDP 2030) – as a transforming country (with the baggage of both colonial and apartheid legacies) – the state is striving to cultivate an environment that is inclusive and socially just. The transformation of spatial milieu presupposes collective ownership and management of space, founded on the permanent and temporary participation of the 'interested and affected parties' with their multiple, varied, and even contradictory political interests. In the review of the current symbolic landscape for inclusion, it is suggested that spatial identity transformation be negotiated; the process must develop from a nexus that understands the interrelationship between space and spatial inscription through the form of street names, symbols, public art, and other forms of spatial markers.

Important to note is that symbolic power is inherent in these processes of change and includes, among other things, erasure and recognition and competing notions of spatial inscription or re-inscription. Notwithstanding the progress made to date, the following remains a challenge: reflecting on the definition and meaning of spaces that have become public; critical reflection on the role of memorabilia in the post-embedded-conflict society; the notion of preservation and conservation in the post-embedded-conflict society; reflecting on the role of memorabilia for documentation and educational ends; and finally, broadening the heritage landscape.

The politics of recognition
Five years since the #RhodesMustFall and #FeesMustFall movements, different forms of memorabilia still remain at the centre of discontent. The observation is that contemplative conversations on these diverse commemorative markers, sites, and symbols established during the colonial, apartheid, and democracy eras are becoming a threat to the country’s NDP 2030, and in particular the social cohesion project. South Africa and the rest of the world continue to struggle to situate/re-appropriate historical text in the contemporary politics of recognition. The demand for recognition in the post-conflict society is given urgency/traction by the hypothetical links between recognition, identity, and public representation. Recent literature postulates that non-recognition or misrecognition in the metros or city spatial landscape can inflict harm, be a form of oppression, or imprison someone in a false, distorted, and reduced mode of being and belonging. Despite the Ministry of Arts and Culture’s investment in transforming the heritage landscape across South Africa – from the level of policy and legislation, the establishment of new commemorative markers, and heritage institutions – the question on what to do with symbols of South African histories and how to deal with them against the backdrop of preservation and conservation in the post-embedded conflict society, remains unclear.

Legislative framework
Whereas the NDP 2030 is advancing a social cohesion vision, section 37 of the South African Heritage Act, No 25 of 1999, protects public monuments and memorials from any form of altering, damaging, or relocation and prescribes a minimum requirement before any form of action is taken. Although the Act is advancing the protection of heritage resources, an interpretation of the Act is that it makes provision for the re-imagination, creative, and responsible review of heritage in a post-embedded conflict society, thus broadening the heritage landscape through reconfiguration discourse of re-interpretation, re-appropriation, relocation, and removal. It is a balancing act with embedded and enmeshed complexities. 

Emancipatory claim-making in the quest for spatial parity
The statue debates continue to be characterised by a polarised disposition. At the one end of the continuum are individuals who hold a strong view and advocate for the ‘cleaning’ of what is deemed painful reminders of past atrocities in the public, which is now accessible to all. On the other end of the continuum are individuals arguing for the juxtaposition model. The process of striving towards a space for equity (cf. socio-spatial justice) and inclusion – needless to say – requires the asking of some difficult questions. 

Towards the inclusion end, the argument is for spatial re-imagination that will have the courage to disrupt homogeneity and advance heterogeneity in pursuit of a spatial landscape where differences intersect, influence each other, and hybridise in pursuit of dialogic engagements and transformative output. 

The UFS and the MT Steyn statue – a transparent and consultative approach
True to the ideals of a contemporary university, which is an intellectual space that encourages new ideas, controversy, inquiry, and argument, and which challenges orthodox views, the UFS has approached the call to remove the MT Steyn statue from the Bloemfontein Campus of the university in a transparent and consultative manner, respecting the different views and perspectives. In fact, the UFS adopted an Integrated Transformation Plan (ITP) in late 2017, aiming at an institution ‘where its diverse people feel a sense of common purpose and where symbols and spaces, systems and daily practices all reflect commitment to inclusivity, openness and engagement’ – the ITP, which embodies social justice, was used as the framework for engagement on the MT Steyn statue.

The South African Constitution, which celebrates the diversity of our nation, upholds the rights of all people to freedom of speech, and specifically protects academic freedom. To shut down the right to speak or ask questions in the context of a public debate is unacceptable in a democratic society. Rude or violent behaviour rarely serves to change how people think about any particular issue – on the contrary, it polarises views and makes it harder to listen to one another. 
In this engagement process on the statue, it was important for members of the UFS community to exercise tolerance to listen, to engage with strongly divergent views, and to do so in a manner that is respectful, so that it expands the space for debate. This indeed happened through seminars, public lectures, panel discussions, radio and television interviews, and public opinion pieces. Through these engagements, four options were put forward in relation to the MT Steyn
statue:
• The statue remains as it is,
• The statue remains as it is, and the space around the statue is reconceptualised,
• The statue is relocated to another position on campus, and
• The statue is relocated off campus

Part of the engagement was a heritage impact assessment (HIA) with a public participation process. The public participation process (60 days) included the exhibition of a reflective triangular column erected in front of the statue, primarily to keep the statue topical, but it also edited the statue out of its power position if viewed from the east along the main axis from the city of Bloemfontein. Public notices and advertisements were placed in both local and national newspapers, while the family of President Steyn was kept informed of developments.

Although the call to remove the statue has challenged and re-energised a critical engagement around the purpose of a university in an unequal society – both as a site of complicity and as a potential agent for social change – the call should never be interpreted as an attack on President Steyn (the person), but rather what a 2 m tall statue represents for a changing student and staff demographic on the UFS campuses.

Honouring the legislative processes through the Free State Provincial Heritage Resources Authority, the UFS Council approved the relocation of the MT Steyn statue from the university campus to the War Museum in Bloemfontein – the ‘dignified’ dismantling of the MT Steyn statue took place on 27 June 2020. With the statue at the War Museum, Steyn’s contribution as an anti-colonialist and anti-imperialist will be fully understood by all South Africans in the context of the South African War, as portrayed by the museum.

Reimaging an inclusive public space faces many obstacles and challenges in engaging with existing spatial markers, differences, diversity, and cultural heterogeneity in creative and productive ways.  However, the path followed by the UFS to relocate the MT Steyn statue creates a unique opportunity for a discussion on how spatial re-interpretation can promote inclusivity and meaning of space in a sustainable manner that balances the intricacies of the past, the present, and the future. All considered, it is a difficult process; but change cannot just be for the sake of change, there should be an emancipatory claim in the quest for a just society, advancing reasoning over rage.

Opinion article by Motsaathebe Serekoane, Lecturer: Anthropology, and Prof Francis Petersen: Rector and Vice-Chancellor, University of the Free State
 

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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