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06 July 2021 | Story Prof Sethulego Matebesi | Photo Sonia Small (Kaleidoscope Stuidos)
Prof Sethulego Matebesi is an Associate Professor at the Department of Sociology at the University of the Free State.

Opinion article by Prof Sethulego Matebesi, Associate Professor at the Department of Sociology, University of the Free State

More than two centuries ago, Patrick Henry of the Boston Tea Party noted, “Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? … give me liberty or give me death.”

 

This statement resonates with the current political theatre set up in Nkandla near the homestead of former President Jacob Zuma. In attendance are many Zuma loyalists of all walks of life. For these Zuma loyalists, their presence at Nkandla symbolises their unparalleled love for their leader, whom they regard as a champion of the poor and the needy. But at the same time, I reckon they want to convey a bold message of their understanding of an expansive idea of what democracy and justice entail.

Notwithstanding this, democracy delivered Donald Trump to America and Zuma to South Africa. But, as intriguing as the contributions of many South African commentators who have compared the two former presidents, one thing is clear: they had all the power to the right things but failed.

The recent sentencing of Zuma by the Constitutional Court for contempt in defying its order to appear before the Judicial Commission of Inquiry into Allegations of State Capture, has created widespread anxiety. Some described this as a resounding affirmation of the independence of the judiciary and the rule of law. Along with this affirmation, so it is believed, is the possibility of solidifying political renewal. For the ardent Zuma supporters, however, the judgement represents a dangerous moment and a threat to the values of South African democracy. 

Ascendance to the political stage 

Undoubtedly, the sentencing of Zuma resurrects an ancient metaphor that life is like a never-ending play in which people are actors. Accordingly, democracy thrust Mr Zuma as the lead actor onto the stage of politics in South Africa in 2009. Of course, there had been several doubts about Zuma’s credibility, long before his ascendance to political power. But we live in a liberal era in which an extensive political background hardly matters anymore. However, history would later suggest that we have erred.

Since becoming President of South Africa, many euphemisms have been used to describe the leadership of Zuma. One of the most scathing euphemisms came from President Cyril Ramaphosa and Finance Minister Tito Mboweni’s reference to the Jacob Zuma presidency as nine wasted years. Similarly, taking a look at history, one wonders who of the twelve former presidents of the ANC shaped Zuma’s notions of power and political identity. Could it be that he embodies the spirit of the founders of the ANC, such as, for example, Josiah Gumede, John Dube, Oliver Tambo, or Sol Plaatje?
Some co-actors in the Nkandla play may mumble that Zuma’s sin is that he is a courageous leader who was not afraid to take risks in facing and dealing with the country’s challenges. For them, Zuma has been able – thus far – to successfully challenge the hegemony of the judiciary and the problems arising from rent-seeking legacies and patronage within the apartheid system that is now blamed on their leader. Such praise comes despite some viewing it as a political tenure that eschewed good governance and financial prudence principles.

A theatre script that went horribly wrong

A conclusion about the play’s primary character is that he has continued – from a supporter’s perspective – to depict the vulgarity of the judiciary in threatening democracy in the country. A root problem with the primary character is the intensity of commitment observed each time he displays his visceral hatred for the judiciary yet performs erratically and confusing when he explains why he did not use the opportunity to state his case. Instead, using his trademark of indiscernible pride, Zuma and his supporters are drawing hysterical comparisons between his sentencing and how the apartheid government was pardoned.

In essence, none of this is surprising. The convergence at Nkandla is symptomatic of an aggrieved group seeking to fight back and exorcising themselves of the destructive spirit of the ANC’s Nasrec elections in 2017. These are acts of delusion – the inevitable result of a political theatre script gone horribly wrong. 

The acid test for the health and vitality of democratic institutions

There have been deliberate attempts by the ruling elite in Africa to narrow the judiciary’s scope since the advent of the third wave of democratisation on the continent. As a result, the euphoria that sees South Africa as a beacon of entrenched constitutionalism in the Southern African region, is waning at an alarming rate. Even more disturbing is the disregard for the rule of law by the political elite, which can manifest itself at different societal levels.

One of the pathways to the current crisis has been the profoundly divisive factional battles of the ANC. The factional is the longer-term context in which the judiciary must affirm its centrality in providing appropriate enforcement mechanisms for constitutionalism. However, any form of back-door concessions for the political elite will be misguided and reckless. South Africans should never again proceed down the road of ideological politicking at the expense of constitutional supremacy. Such a path dissipates the rights of the people.

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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