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01 October 2021 | Story Xolisa Mnukwa

The silence of universities, collectively and individually, regarding the July events (the political turmoil that disrupted different regions in South Africa in July 2021) was noticeable, as well as inexplicable and distressing. 

This was according to Prof Saleem Badat, Research Professor in the College of Humanities at the University of KwaZulu-Natal and former vice-chancellor at Rhodes University, during a webinar hosted by the University of the Free State (UFS).  

The webinar: The impact of political influences on university governance structures, was held on 22 September 2021, with Prof Badat; Prof Francis Petersen, Rector and Vice-Chancellor of the UFS; Prof Hermann Giliomee, internationally renowned historian; Prof Chitja Twala, Vice-Dean: Faculty of the Humanities at the UFS; and Prof Thulisi Madonsela, Law Trust Chair in Social Justice and a Law professor at Stellenbosch University, as panellists. 

SABC anchor and prominent South African journalist, Vuyo Mvoko, who facilitated the webinar, opened engagement among the esteemed panel by posing the question – how can university communities collectively solve the challenges facing South Africa today?

University governance structures must address and mediate political influences in principled, creative, and strategic ways

“I hope that there is honest and critical reflection on this by individual universities and Universities South Africa (USAf),” said Prof Badat on the silence of universities regarding the July events. He further argued that a ‘renewed focus’ on the responsibilities of universities in society is important. 

He explained this by unpacking the roles of universities in society and how they are shaped by the structural and conjunctural conditions within which they exist and operate. Prof Badat encouraged those roles – institutionally and through scholarship, learning, and community engagement – to intersect effectively with contemporary and long-term economic, social, and political challenges faced by universities at global level. 

You are a participant in South African society before you are a staff member or student

Prof Twala responded to the topic by saying: “In order to understand a university’s governance, student politics, and activism, it’s also important to historicise the impact and political influence that governmental structures in South Africa continue to have on higher education institutions.” 

He unpacked his argument by highlighting the importance of engaged scholarship within universities when the South African society is threatened by occurrences such as the riots that took place in KwaZulu-Natal and Gauteng in July as a result of political failures in government. 

“If there are social ills and problems at community level, you cannot divorce yourself from such, because they have an impact at your place of work or learning,” he explained. 

Prof Twala further highlighted the provision of higher education in SA as political, and that universities should move according to the ideological times and changes experienced across the country to understand what governance within higher education spaces should look like.

Prof Petersen reflected on the role of higher education institutions as catalysts for social change and the collective responsibility they have in solving the key challenges of poverty, inequality, unemployment, and violence in societies.
According to Prof Petersen, the crucial role that universities need to fulfil is often impacted by political influence exerted on university governing structures. “Therefore, student governing structures, in particular, are often vulnerable to political pressure that results in different tensions and challenges in the higher education system,” stated Prof Petersen. 

Complexities regarding language policy in university governance at a time of political transition
Prof Giliomee reflected on the complexities regarding language policy in university governance at a time of political transition, by unpacking the negotiations among higher education institutions regarding the implementation of a new language constitution in South Africa – and the absence of pertinent proposals from universities concerning their future role and functioning in society. 

Prof Giliomee argued that universities, separately or collectively, did not try to promote understanding of how the new South African state could meet the demands for higher education in a multilingual society. While enjoying the highest prestige, English was not in effect the optimal medium of instruction for the country.

The involvement of government in university governance is necessary and inevitable

Prof Madonsela, who is also the founder of the Thuma Foundation – an independent democracy leadership and literacy public benefit organisation – and a widely published author, discussed the role of the South African government in mandating leadership, governance, and protocol from a national level so that higher education institutions can follow suit. 

“Government is a custodian of the constitution,” Prof Madonsela stated before explaining the principles that should oversee government’s involvement in university leadership structures.  

She modelled the eight (8) standards of good governance as identified by the United Nations, being participation; rule of law; transparency; responsiveness; equality and inclusivity; consensus orientation; effectiveness and efficiency; and accountability, as a sounding board for the South African government itself, through to university management structures – prevailing through the basis of South Africa’s own constitution. 

Prof Madonsela further underlined the importance of ethics in the overall society that South Africa is building as a nation, by discussing the necessity of understanding democratic value, social justice, and fundamental human rights – not only within university governance and governmental structures, but also within the population.

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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