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21 May 2020 | Story Prof Karin van Marle | Photo Anja Aucamp
Prof Karin van Marle

In the build-up to Africa Day, I noticed – among others – the slogan ‘I love Africa’ flashing in neon colours that reminded me of music videos seen on MTV in the 1980s. The idea of Africa being loved not only by those living on the continent, but also by the rest of the world, had some moments in the same decade – with pop stars coming together, for example in USA for Africa and the UK version, Band Aid. Although these attempts might have warmed some hearts, it exposed the failure of this kind of sentimentality to contribute much to the continent. Can we think of how to love and engage with the continent in a different way?

Hannah Arendt, in her Thinking journal, contemplated the question, ‘why is it so difficult to love the world.' In response to a letter from her friend and mentor, Karl Jaspers in 1955, in which he wrote to her, “You bring with you shared memories of a lost past. You bring the wide world as it is today,” she wrote “Yes, I would like to bring the wide world to you this time. I’ve begun so late, really only in recent years, to truly love the world that I shall be able to do that now. Out of gratitude I want to call my book on political theories Amor Mundi” (1985: 264). Linked to the idea of loving the world in Arendt’s work, is also that of sharing the world with each other. Arendt famously accused Nazi Adolf Eichmann of refusing to share the world with others. For the purpose of Africa Day on 25 May, I revisited these notions of loving and sharing as reflected by Arendt. I raised the question – what does it mean to love Africa and to share the continent with others?

 For Arendt, the love of the world, and linked to it – the idea of solidarity – is something quite different from equality, care, and sentiment. Love of the world, for her, entails a critical engagement with the world. What could such a love mean in relation to Africa? 

In the prologue to The human condition (1958: 5), she underscores the importance of thought and her concern about thoughtlessness, which she describes as “the heedless recklessness or hopeless confusion or complacent repetition of ‘truths’ that have become trivial and empty”. She sets out that the central theme of the book is to focus on ‘what we are doing’ and that ‘the activity of thinking’ is left out of this work. In other works, Arendt turns to the importance of thinking and, in fact, commentators have noted an ongoing tension in her work between the life of action and the life of the mind. To love the world seems to include both a thorough engagement with what we are doing and a deep contemplation of what it is that we are doing. What has always struck me in her work, is the insistence on thinking and thinking anew each time, instead of merely following what is regarded as ‘truths’. Part of what it could mean to love Africa, is not to accept or repeat trivialities and not to become complacent, but to continuously search for new ways to understand and to respond.

A tension that accompanies the tension between a life of action and a life of thinking, is that between being with others and being alone. Human plurality is for Arendt ‘the basic condition of both action and speech’ (1958:175). Becoming part of the world is like ‘a second birth’ which takes place neither by ‘necessity’ nor by ‘utility’, but by taking ‘initiative’ (177). This birth or new beginning brings forth an ‘unexpectedness’ and ‘happens against the overwhelming odds of statistical laws and their probability’. Where the latter always ‘amounts to a certainty’, new beginnings ‘always appear in the guise of a miracle’ (178). It is by way of action that we become part of the world, share the world with others, and become entangled in the ‘web of relationships’ (181). Of course, for Arendt we always begin again, and the possibility for new ways of doing and forging new relationships is always there. 

Antjie Krog (2015:219) remembers Thabo Mbeki’s speech on the day the Constitution was adopted. “On an occasion such as this, we should, perhaps, start from the beginning. So, let me begin. I am an African. I owe my being to the hills and the valleys, the mountains and the glades, the rivers, the deserts, the trees, the flowers, the seas and the ever-changing seasons that define the face of our native land.” She praises Mbeki for considering the idea of ‘being ruled’ rather than ‘being a ruler’. She finds in his speech a “kind of radical relational enfoldedness with the land” that is vastly different from most discussions from all sides of the spectrum on land. To what extent are those of us living in Africa thinking differently and innovatively, for example about land, and about how we share it with others. How can we think anew about current discourses on the African Renaissance and also decolonisation?

Arendt is clear on the importance of solitude. She underscores the importance of thinking, and slow thinking, and obtaining distance from others, and from the world of action in order to do that. In her way, she was very wary of a certain kind of solidarity based on sentimentality. Engaged citizenship, for her, is always accompanied by a critical self-reflection. Arendt (2003) warned against the urge to act in haste without thinking; she warned against withering ‘under the weight of immediacy’. In a world and a continent with so many dire needs demanding attention and action, this does not mean that we should not act with urgency, but it underscores the importance of well-thought-out responses, of not falling back on old answers.

In short, loving Africa demands of us to engage critically, not to fall back on recipes and formulas, and not to follow rules blindly; it asks us to always begin again; to seek not only for new answers, but also for new questions.

 

This article was written by Prof Karin van Marle, Department of Public Law, Faculty of Law

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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