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Union Building Pretoria
The University of the Free State presented its first webinar titled, The threats to South Africa’s domestic stability and security challenges, which is part of the 2023 Thought-Leader Webinar Series on Tuesday 4 April.

The biggest threat to South Africa’s domestic stability and the health of the country’s democracy is its leadership and the continuing political corruption of the ANC.

This is according to the panelists at the University of the Free State (UFS) first Thought-Leader webinar for the year. The webinar titled, The threats to South Africa’s domestic stability and security challenges, had as panelists Busisiwe Mavuso, Chief Executive Officer: Business Leadership South Africa; Palesa Morudu, Director: Strategy and Marketing Clarity Global Strategic Communications; Prof Hussein Solomon, Senior Professor: Centre for Gender and Africa Studies, UFS; and Dr Ivor Chipkin, Co-Founder and Director: New South Institute. Prof Francis Petersen, UFS Rector and Vice-Chancellor was the facilitator. 

Lawlessness is the problem

Mavuso said the essence of the country’s problems is lawlessness. 

“The conversation is not just about threats, but when you look at why these threats exist, it’s because we have a lawlessness problem as a country. South Africa has degenerated into a lawless country. And lawlessness is the symptom. If you want to get to the bottom of why we have a lawlessness problem, my view is that we need to start with the root – the culture issue.

“South Africa’s problem when it comes to corruption, is a culture problem. It is a culture that has been cultivated and set from the top. The political culture in South Africa is that being accused of a crime is not embarrassing. We have a culture conducive to theft, and if that is the culture at the top, what makes you think that as a country people won’t follow suit because the message is clear that crime pays and that nothing will happen to you and you can still hold political office. Better still, you can be the president of the country,” said Mavuso. 

According to her, the Global Initiative Against Transnational Organised Crime report last year shows that SA is witnessing a dramatic expansion and legitimisation of organised crime which is rising rapidly, with dire implications for the economy and the country’s stability.

Mavuso said countries fall apart when governance fails at government level because it is governments that set countries apart, not geography. Government is what separates good prosperous states from bad failing states. And it is unfortunately where we are as a country because our leaders are not what they ought to be. 

The focus for the country right now, said Mavuso, needs to be economic recovery, trying to attract investment as it is the only way to get out of this economic rut and deal with poverty, unemployment, and inequality crises.  

“I am worried that if we do not get this right, domestic stability is not going to get better. The threat to South Africa is bigger than we comprehend. It really is an issue of leadership. The solution is having the right leadership that is going to set the right tone. Let us agree and accept that South Africa is divorced from leadership which is why we are on the verge of becoming another failed African state.”

Not unique to South Africa

In her presentation, Morudu also focused on international policy and to what extent it may or not lead to negative developments on the domestic front. She said the topic is not unique to SA as the world is going through a deeply unsettling phase. From the threats to democracy, to climate change, to rising inequality, a bloody war in Ukraine, threatening economic recession as a result of COVID-19, and a growing mental health crisis among young people, especially in the US. 

“The world is quite a frightening place at the moment. I am not saying this to say that our problems are minor, but to help us understand the international context and that if we do not respond with some speed to our present challenges, not only will our backsliding economy and politics have very serious consequences for us, but it will also have major consequences for the part we play in the international system.

“I think it makes absolutely no sense for South Africa to align with Moscow over the conflict in Ukraine. Russia invaded a sovereign country; it came into that country with tanks and guns. It is very much like when the apartheid government invaded Angola in 1975 and pretty much stayed there until 1988,” said Morudu. 

According to her, South Africa’s backsliding democratic principles and foreign policy will also find expression in domestic policy. Nothing demonstrated this as keenly as the years of state capture that we lived through over the past 10 to 15 years. State institutions were hollowed out and rendered ineffective. Says Morudu: “The corruption of institutions took hold and thieves inside the state stole with impunity. The end result of that was there for all the world to see during the mass riots of July 2021. The state was literally unable to secure the safety of its own citizens. People had to organise themselves to stop the looting and to provide basic services to one another. It was an extraordinary moment for South Africa.”

Crises of democracy and the crisis of government 

Dr Chipkin said there seems to be a strong correlation in the crises of democracy in South Africa and the crisis of government. “There are questions around the role, integrity or value of democracy and I think a lot of that has to do with the crisis of government, the seeming inability of our public service, our state institutions, to deliver on the very ambitious programme of economic transformation that is part of constitutional promise.”

He said there has been a lot of work done to professionalise the public service in SA. “It is credible, intelligent, durable and I do believe that there is some appetite for change. There is an opportunity for the university to jump into that space, as activists or as academics, to claim and widen that space going forward.”

He believes that reforming the public service is going to close the door or at least narrow a pathway to the kind of corruption we have in SA. “As we make improvements in professionalising public services, I suspect organised crime is going to grow as it will be threatened by these progressive initiatives. It is going to resist. What is pertinent on the agenda is progressive moves towards modernisation in SA need to be accompanied by serious moves to reform and improve the capacity of the police to respond to the situation of interpersonal emergencies of organised crime in particular, and ultimately state capture.”

According to him, the situation [with the police] is not as dire as we think. He said the police as an institution is probably in a better state than we would like to think. “It is not full of incompetent policemen. I think it is full of a thousand capable, committed, honest and sincere policemen trying to do their jobs under circumstances which are terrifying difficult. I think challenges in the police are rather institutional.”   

Corporate sector reeling from criminal violence

Prof Solomon said the country’s security situation is rapidly deteriorating and he fears something really bad is lurking on the horizon for the country and its people. “Consider the following. It is estimated that more than 40% of women in South Africa will be raped in their lifetimes and that only one in nine rapes are reported. It is also estimated that only 14% of perpetrators of rapes are convicted in South Africa,” he said.

He stressed that beyond the level of personal violence, the corporate sector is also reeling from criminal violence. According to him, in 2019 already, 183 infrastructure and construction projects nationwide valued at more than R63 billion have been hindered by violent disruptions by the so-called construction mafia who euphemistically refer to themselves as business forums, typically demanding a 30% stake in projects.

“There has been little to no police intervention to stop this extortion economy and foreign investors flee in the face of the naked violence. As every first-year political science student knows, one of the characteristics of the state is its monopoly over coercive force within its territorial boundaries. The existence of these construction mafias and their ability to exert violence undermines this statehood, therefore South Africa is increasingly being referred to as a failed state.” 

He says this inaction begs the question as to what the state of our security services is. For 20 years terrorist financing in SA has been an issue. In July 2022 the problem of terrorism financing came to the fore when the United Nations Security Council experienced grave concern at how the Islamic State’s tentacles were spreading across the African continent and how SA has been used to fund Islamic State affiliates. 

“The bottom line is this. South Africa’s security situation is worsening. There are concrete recommendations which we can embark upon, but these will not work whilst the ANC is in power. The government lacks the capacity and legitimacy to rein in the forces of chaos which are about to envelop the country,” he said.

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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