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Confronting collective inactivity to safeguard our freedom

27 April 2021 | Story Prof Sethulego Matebesi | Photo Sonia Small

Prof Matabesi — Prof Sethulego Matebesi is a Senior Lecturer and Academic Head of the Department of Sociology at the University of the Free State.

This year’s Freedom Day marks an important milestone in the history of South Africa. It will be 27 years since the first non-racial elections were held in the country, a figure that equals the number of years Nelson Mandela spent in prison.

If equating Mandela with the freedom we enjoy today is not already disingenuous enough, we sunk even lower by assuming that we are close to achieving the civil liberties he embodied. You do not have to go further than read the daily media headlines to understand the extent of the onslaught on the pillars of democracy. That this onslaught comes from political leaders is one of the main reasons why most South Africans are disillusioned with politics, democracy and social issues.

Anarchy wreaking havoc in weak societies

Sociology taught me about the relevance of institutions to a social structure: they control human conduct by setting up predefined behaviour patterns. For example, throughout history anarchy has wreaked havoc in settings where organisations are weak, fragmented, and the citizenry is inactive. Similarly, while peace, unity, and the preservation and the restoration of human dignity are the hallmarks of Freedom Day celebrations, we have become a nation increasingly influenced by symbolic politics and the politics of offence.

It would be hard to find a better example of a significant threat to the pillars of democracy than the widespread onslaught on the judiciary. At the heart of the broader political, legal, and moral issues confronting SA today is how the right of all to equal respect and equal protection under the law has been compromised. Casting doubt about the independence of the judiciary conceals the motivations that most endanger the principles of freedom and equality.

My stance is not aimed at muting the expression of unpopular opinions – a basic tenet of democracy. However, we need to be mindful of events that have and will become powerfully symbolic in altering the nation’s social fabric.

Freedom under attack by populist politics

Any societal change requires some form of flexibility. No doubt, the first decade of democracy was accompanied by hope and the euphoria of the Rainbow Nation. This period demonstrated how different racial groups could live together in harmony, play together, and attend the same school without being required to forsake values they hold dear. This period was punctured by notions of active citizenship and the promotion of democratic cooperation that is based on the acceptance of universal human rights and the rule of law and values of diversity.

While millions of people elsewhere in the world have been forced to flee hunger, war, terrorism, and emboldened autocrats in their countries of birth, the euphoric wave of the Mandela years has, unwittingly and dramatically, worn off during the past decade in South Africa. This turn of events is linked to populist politics that seriously compromise democratic institutions in the country.

In my opinion, there are no heroes in situations like these.

In a country characterised by rampant corruption, violent crime, gender-based violence, human trafficking, racial intolerance, and teenage drug abuse, are politicians the only ones to be blamed for the threats to democracy?

Conquering immorality and safeguarding our freedom

Despite all the challenges we face as a country, we remain a remarkably resilient nation, as is widely acknowledged. This resilience is echoed by how we have navigated our way around a highly divisive and intolerant society to embrace and celebrate our rich and vibrant cultural heritage.

Nevertheless, we have become complacent. We have been vocal against any narrative aimed at restricting our legal, religious, human, civil, economic and political rights. Yet, partly due to our collective inaction, we have failed to use the means to provide a compelling counter-narrative of resistance to the manipulation of state institutions and broader immorality permeating society. This inaction affects the lives and livelihoods of millions of those who do not have the organisational capacity and means to advocate for the causes that affect them.

Let us use this year’s historic Freedom Day celebrations to demonstrate our firm resolve to protect the critical pillars of democracy from further exploitation. This kind of collective responsibility is what South Africa has always been about. Only when our government at all levels, the private sector, and concerned citizens across the country begin a critical partnership and commitment to maintain our democratic institutions and processes that our past losses as a nation become gains and defeats become triumphs.

* Prof Sethulego Matebesi works on all current affairs such as political and social issues. More specifically, he focuses on social movements and protests, community-mining company conflict, and local municipal governance.

News Archive

UFS law experts publish unique translation

2006-06-21

Attending the launch of the publication were from the left: Prof Boelie Wessels (senior lecturer at the UFS Faculty of Law), Prof Frederick Fourie (Rector and Vice-Chancellor of the UFS), Prof Johan Henning (Dean: UFS Faculty of Law) and Adv Jaco de Bruin (senior lecturer at the UFS Faculty of Law). Prof Wessels translated the treatise from corrupted medieval lawyer Latin into English, Prof Henning is the leading author and initiator of the publication and Adv de Bruin assisted with the proofreading and editing. Photo: Stephen Collett

UFS law experts publish unique translation of neglected source of partnership law

The Centre for Business Law at the University of the Free State (UFS) has translated a unique long neglected Roman-Dutch source of the law of partnership law from Latin into English. This source dates back to 1666.

The book, called Tractatus de Societate (A Treatise on the Law of Partnership), by Felicius and Boxelius is published as Volume 40 in the research series Mededelings van die Sentrum vir Ondernemingsreg/Transactions of the Centre for Business Law. It is the first translation of this Roman-Dutch source into English and comprises of a comprehensive discussion of the South African common law of partnerships.

“Apart from various brief provisions dealing on a peace meal and an ad hoc basis with diverse matters such as insolvency, there is no comprehensive Partnership Act in South Africa. The law of partnership in South Africa consists of South African common-law, which is mainly derived from Roman-Dutch law,” said Prof Johan Henning, Dean of the Faculty of Law at the UFS. Prof Henning is also the leading author and initiator of this comprehensive publication.

“Countries such as America, England, Ireland and The Netherlands have drafted or are in the process of establishing new modern partnership laws in line with new international guidelines, practices and commercial usages,” said Prof Henning.

“However, in South Africa the most recent policy document released by the Department of Trade and Industry explicitly excludes partnership law from its present company law reform programme and clearly regards this as an issue for another day,” said Prof Henning.

“Unless there is a political will to allocate the necessary resources to a comprehensive partnership law revision program, it is a practical reality that South Africa will not have a modern Partnership Act in the foreseeable future,” said Prof Henning.

According to Prof Henning South African courts have been using the Roman-Dutch partnership law sources as authority. “The English Partnership Act of 1890 is not binding and the English text books should therefore be approached with caution,” said Prof Henning.

“A treatise on the law of partnership that has been regarded by South African courts as an important common law authority is that of a Frenchman by the name of Pothier. This treatise was translated into English and was regarded as an authority of significance in The Netherlands towards the end of the eighteenth century,” said Prof Henning.

“Pothier’s opinions are however not valid throughout in the Roman-Dutch partnership law as it did not apply to the Dutch province of The Netherlands and it sometimes also rely on local French customs for authority,” said Prof Henning.

For this reason the Centre for Business Law at the UFS decided to focus its attention again on the significance of the comprehensive treatise of Felicius and Boxelius on the Roman-Dutch partnership law. Felicius was an Italian lawyer and Boxelius a Dutch lawyer.

This long neglected source of partnership law was published in 1666 in Gorkum in The Netherlands. "A significant amount of Roman-Dutch sources of authoritive writers trusted this treatise and referred to it,” said Prof Henning.

The translation of the treatise from corrupted medieval lawyer Latin into English was done by Prof Boelie Wessels, a very well-known expert on Roman Law and senior lecturer at the UFS Faculty of Law. Prof Wessels, who has 15 degrees, spent almost ten years translating the treatise. The proofreading and editing of the translation was done by Prof Henning and Adv Jaco de Bruin, a senior lecturer at the UFS Faculty of Law.

“We want the South African courts to use Volume 40 in the research series Mededelings van die Sentrum vir Ondernemingsreg/Transactions of the Centre for Business Law as the primary source of reference when cases where Roman-Dutch Law partnership law principles are involved, are ruled on,” said Prof Henning.

The first part of the publication comprises of selected perspectives on the historical significance of the work as well as a translation of selected passages. “The intention is to follow this up expeditiously with the publication of a very limited edition of a complete translation of the work,” said Prof Henning.

A total of 400 copies of the publication will be distributed to all courts, the Appeal Court and the Supreme Court.

Media release
Issued by: Lacea Loader
Media Representative
Tel: (051) 401-2584
Cell: 083 645 2454
E-mail: loaderl.stg@mail.uovs.ac.za
21 June 2006

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