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01 July 2021 | Story Dr Nitha Ramnath and André Damons
Discussing local government elections. Panellists in the University of the Free State Thought-Leader webinar hosted on 29 June 2021.

Elections are supposed to bring better, more accountable governments into place, but at local government level this has not happened so far. No real change should be expected with new local governments. The elections are not necessarily the answer.

This is according to Prof Susan Booysen, Director of Research at the Mapungubwe Institute for Strategic Reflection (MISTRA), who was one of the panellists at the University of the Free State (UFS) Thought-Leader webinar on Tuesday (29 June 2021). The webinar with the theme South African politics and the local government elections: scene setter for a capable state? is part of the Free State Literature Festival’s online initiative, VrySpraak-digitaal


Mr Ebrahim Fakir
, Director of Programmes at the Auwal Socio-Economic Research Institute (ASRI), and Prof Sethulego Matebesi, Associate Professor and Academic Head of the Department of Sociology at the UFS, were the other two panellists who discussed politics and local government elections – which is only four months away. 

Not much progress in local government

“We've seen minor changes, more coalition governments that have been coming into power – at least in the metro cities.  In the last few elections, there have been in the region of 30 or so local and major municipalities with coalition governments in South Africa,” said Prof Booysen.

According to her, she does not believe that we can go without elections; however, elections are not necessarily the answer, as there has not been much progress at local government elections as well as on other levels.

Prof Matebesi is in agreement with Prof Booysen, saying that the forthcoming elections would not bring about any change. Said Prof Matebesi: “If we agree that problems in local government – which leads to poor performance – are caused by political and not administrative leaders, if we agree that the local government system is not geared for power-sharing, and if we agree that the challenges of political leaders can partly be ascribed to the dominance of internal party politics, particularly the immense power vested in the office of the mayor – where there is sometimes a complete disregard for council resolutions – then I believe that the 2021 local government elections will not affect the changes, and produce a strong local government, capable of fulfilling its constitutional mandate.”

Decent government can withstand bad politics 

Mr Fakir said it is not possible to talk about a capable state or governance or effective government if we do not talk about politics. Axiomatically, it would mean that if politics precedes government, the type of politics prevalent in society would determine the nature of government thereafter. 

“Even if there is bad politics – with robust institutions, processes, and procedures according to which decisions are made and resources are allocated, society will be able to withstand a period of bad politics. The US and the UK have had bad politics for some time, with robust institutions. However, in South Africa, only 20 years into transition, our institutions are not robust enough and have therefore been available for the malevolent acts of state capture due to corruption,” says Fakir. 


 

He outlined five markers for a capable state:

1. A strong regulatory capacity – the ability to make laws and policies that are prudent, appropriate, and that fit the circumstances of the society.
2. A technical capacity – the engineering works, the ability to technically maintain and build the infrastructure and carry out the necessary activities required to make a society functional and facilitate its social and economic activity.
3. An administrative capacity – the ability to execute and implement strong oversight, serious ways of extracting accountability. 
4. An extractive capacity – the ability to raise taxes, revenues, rates, so that there is funding for the kind of things that need to happen at local government level.
5. A coercive capacity – the ability to ensure compliance with rules.

“I would argue that if one had to take each of these five measures, you would find that local government – and government in general – are lacking. So, if you have bad and malevolent politics, if you have bad ethics in society, then the ability for these five functional areas of capability in state suddenly starts to wither away, and you have a weak state,” Fakir said. 

 

South Africa is going through transformation and transition fatigue in the local government area. “At each local level of the state, there is a cadreship of representatives who are more powerful and can exercise power over the PR system. This type of dysfunction filters through the system of accountability and oversight, and as such, people who are responsible for coalface delivery collapse because the oversight is not there.” 

According to him, we have bad politics, and because of this our institutions are easily manipulated, our processes are easily undermined, and people are put in those positions because they can be easily manipulated. 

“Because of that, you have poor accountability, laxity, a poor attitude of working with a sense of ‘all will do as they please’ – the one takes licence from the other, and people feed off each other’s desire for lack of compliance, giving rise to a predatory state.” 

Prof Francis Petersen, who was the facilitator, said the challenges relating to local government will persist.  
“Ultimately, it is about the culture of service, the trust that needs to be developed between the citizens and local government. It is not only about the technical competency, but also about the ethical and value systems,” said Prof Petersen.

According to him, the role of universities in this should never be underestimated.  Platforms should be open to debate and discussion to offer potential solutions to politicians and to bring across that ethical and critical analysis. 

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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