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25 May 2020 | Story Dr Nitha Ramnath. | Photo Anja Aucamp
Dr Nitha Ramnath.

While Africa can boast many achievements today, it also faces a myriad of challenges.  With its diverse political and socio-economic landscapes, blend of cultures and traditions, no two countries in the continent are the same. While important advancements have been achieved in many areas, societies are still plagued by discrimination, racism, and inequalities. The multifaceted and complex challenges facing Africa can only be tackled effectively through inclusion. 
The African proverb ‘Umuntu ngumuntu ngabantu’ can be translated to mean that to be human is to recognise the humanity of others. The notion of Ubuntu is developed from this proverb when discussing problematic situations and appealing to individuals to be humane and to ensure that human dignity is always at the core of people’s’ actions, thoughts, and deeds when interacting with others. Having Ubuntu is showing care and concern for others, lending a helping hand, and displaying an understanding of the dignity with which human beings ought to be treated – because they are human. Ubuntu is the hallmark of inclusivity, an example of tolerance and solidarity in ordinary life. It denotes brotherhood, neighbourliness, benevolence, human dignity, equal treatment and respect, solidarity, human rights, and tolerance towards outsiders. 

In April 1998, Thabo Mbeki addressed the United Nations University, where he called on Africans to appreciate their importance and equip themselves for development shaped for equal economic activity and good living. With a superior insight into the importance of brotherhood and neighbourliness, premised on African renaissance, Thabo Mbeki warned Africans against intolerance towards outsiders. He said the following:

“I owe my being to the Khoi and the San whose desolate souls haunt the great expanses of the beautiful Cape. I am formed of the migrants who left Europe to find a new home on our native land. Whatever their actions, they remain, still, part of me. In my veins course the blood of the Malay slaves who came from the East. I am the grandchild of the warrior men and women that Hintsa and Sekhukhune led, the patriots that Cetshwayo and Mphephu took to battle, the soldiers Moshoeshoe and Ngunyane taught never to dishonour the cause of freedom. I am the grandchild who sees in the mind’s eye and suffers the suffering of a simple peasant folk…”

“I come of those who were transported from India and China. Being part of all these people, and in the knowledge that none dare contest that assertion, I shall claim that I am an African!” 

However, these wise words and the concept of Ubuntu of Africans, stands in stark contrast to the bout of xenophobic attacks, and the pandemonium of violence recently seen in South Africa.

Despite the many challenges that the South African state is grappling with, it is a known fact that the country continues to offer much-needed economic attraction for most Africans from poor nations. South Africa’s sophisticated economy is an attractive pull force for many Africans, and regardless of the European concerns about Mediterranean migrants from Africa, most of the migration occurs within the African continent itself. 

As such, South Africa has seen a surge in violence in recent years, where African nationals – mainly economic migrants – were exclusively targeted, resulting in the deaths of 12 people in 2019. Mainly from Somalia, Ethiopia, Zimbabwe, and the Democratic Republic of the Congo, thousands of these African foreign nationals found themselves displaced and their shops looted and vandalised. The assumption that people have come to ‘take the jobs’ of South Africans has subjected individuals to xenophobic attacks. 

The violent attacks were soon followed by African refugees and asylum seekers protesting xenophobia and staging months of sit-ins on the streets of Cape Town from September 2019. A makeshift camp quickly grew on the pavements of the city’s main tourist attractions, the Greenmarket Square. Another camp sprung up outside the District Six Museum – with protesters inside the Central Methodist Church on Greenmarket Square and outside the District Six Museum. These protestors were demanding relocation to any other country.

The language of fear and intimidation has become embedded in our national dialogue and has often dominated news headlines locally and globally. President Cyril Ramaphosa emphasised that turning on foreign nationals can never be justified. He said: “We want foreign nationals here to obey the laws of South Africa. They must obey the laws. They must live in accordance with our protocols, laws, and regulations. If they are committing crime, they are criminals like any South African would be a criminal for doing the same thing.”

In response to the violent attacks on foreign nationals, the African Union and African countries have criticised South Africa, threatening economic sanctions. South African embassies were attacked and the South African ambassador to Nigeria was summoned. The attacks saw the withdrawal of the Zambian soccer team from a match and the cancellation of a concert by a Nigerian Afrobeat star – all in protest against the attacks. South African businesses were also under threat. 

In response to the attacks, the government launched a National Action Plan to combat xenophobia, racism, and discrimination, in order to address the widespread human rights abuses arising from xenophobic and gender-based violence and discrimination.

However, the Action Plan has glaring gaps and fails to address the problem of lack of accountability for xenophobic crimes. No convictions have been reported and perpetrators of such violence got away, setting the stage for similar attacks in the future. 

Xenophobia found itself a threat to the idea of the African Renaissance – the ideals of harmony and diversity were suddenly threatened. It seems that South Africans soon forgot about the good old African Ubuntu and its own struggles and attempts to overcome the injustices of the past and its many projects of social cohesion and inclusive nation-building, all premised on the idea of Ubuntu?

We are therefore faced with uncomfortable questions as South Africans – why are we treating people so inhumanely? How is it that 25 years after the first free and fair elections, coupled with our own struggle for human rights and the need to end discrimination, we support the displacement of communities and watch the destruction of the lives of many?  
South Africa has taught the world many lessons about forgiveness and reconciliation. As violent anti-immigrant rhetoric sweeps through Europe and the United States and many other parts of the world, perhaps this is another opportunity for us to teach the world about how hatred emerges and how it can be stopped.

SA stands to gain tremendously from the diverse nature of society, and we need to remind ourselves again of the principle of Ubuntu – our attitude of benevolence and tolerance towards foreigners or strangers before xenophobia.
We need to ask ourselves – how did we fare during the recent xenophobic attacks, and have we done enough to put an end to these atrocities that stand to threaten the very fabric of Ubuntu in the future. Have we allowed xenophobia to dilute Ubuntu?

This article was written by Dr Nitha Ramnath, Deputy Director: Communication and Marketing at the 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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