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06 December 2023 | Story Hlumelo Xaba | Photo SUPPLIED
Hlumelo Xaba
Hlumelo Xaba is an intern in the Department of Student Affairs at the University of the Free State (UFS). He holds a BA degree in Governance and Political Transformation from the UFS and was the UFS SRC member for Arts and Culture in 2022.

Opinion article by Hlumelo Xaba, Intern in the Department of Student Affairs, University of the Free State (UFS)

The 2016 South African local government elections heralded the ushering in of a new dimension in the country’s political landscape with regard to constituting governments at local level. For the first time since the inaugural democratic elections of 1994, the governing ANC experienced significant electoral declines, which resulted in the party plummeting below the 50% + 1 prerequisite needed to remain the majority party in various municipalities. 

This loss of support meant the ANC would have to leverage the help of those that would be willing to co-govern with them in various hung councils. At the same time, however, the decline of the ruling party galvanised opposition parties to organise themselves into coalition pacts that would push the ANC into a peripheral position in the local government sphere. Although most of these coalitions have been unstable, the growing likelihood that such arrangements will become part of South Africa’s politics beyond local government necessitates long-term interventions to counter the current political predicaments.

The outcomes of the 2021 local government elections saw the acceleration of the need for coalitions in some local government councils, with a total of 67 hung municipalities across the nine provinces, more than double the number from the 2016 local elections. eThekwini became the new addition to the list of hung metros, even though the ANC managed to retain its governing position through an arrangement with smaller parties. 

Solutions to ever-changing dilemmas

When a certain level of dissatisfaction or disagreement among role-players in a coalition is reached, that partnership is likely to deteriorate, and a new one becomes more likely to be established, based on a new set of preferences and objectives. This has proven to be the case in hung municipal councils including the City of Johannesburg, City of Ekurhuleni, and Nelson Mandela Bay, where DA-led coalitions were replaced by ANC-EFF partnerships that opted for councillors from minority parties to be at the helm as Executive Mayors, while the bigger parties occupy MMC positions, even though it is disputable that these coalitions are premised on common interests aimed at catering for the greater good, rather than serving political agendas and self-interest. 

The climate in South Africa’s local government sphere over the past seven years is a precursor to what the broader citizenry can expect in other spheres of government moving forward, because of the ruling party’s deterioration. With no opposition party being able to make the necessary strides and unseat the ANC on its own, governance of some provincial legislatures – and possibly at national level – after the upcoming 2024 general elections seems likely to require new political formations that demand coalitions. 

Earlier this year, Deputy President Paul Mashatile convened a National Dialogue on Coalition Governments. The dialogue was aimed at responding to the challenges coalitions have faced in the local sphere by formulating a framework that includes a set of principles that will make coalitions function for the greater good in the future. Some of the principles guiding the proposed framework included the following: putting people first in considerations around the formation of coalition governments; such coalition governments must contribute towards building a prosperous society in which people have access to land for productive purposes; and parties to such governments must be bound together by a commitment to good governance and no tolerance for corruption. 

Although a framework of this nature might help in changing the current chaotic status quo, the top-down approach so far used in drafting such an agreement is exclusionary to the electorate. In fact, it may not be reflective of the aspirations and actual needs of the people which it is meant to represent.

Reflect on coalitions and their ramifications 

As the country gears up for the 2024 general elections, political leaders should reflect on coalitions and the ramifications thereof in instances where there was instability for various reasons. The primary focus of coalitions should be on common objectives that will seek to combat socioeconomic ills that citizens face (including poverty, unemployment, crime, and basic service delivery), as well as maintaining stability through good ethical governance that will effectively respond to these challenges. The instability of coalitions across the local government sphere, which has resulted in seemingly insurmountable service-delivery shortfalls due to constant administrative changes, should be seen as a summary of what transpires when there’s a great deal of political interferences in the administrative functions of governments, whether local, provincial, or national.

Although the policies and societal outlook of different political formations are influenced by the ideologies that a party aligns itself to, politicians should be cognisant of the reality that no party can dictate or impose its views on how a coalition should function without considering the inputs of other role-players. Instead, political leaders need to accustom themselves to a culture of maintaining a balance between their own values whilst working with other parties towards common goals that will improve the livelihood of all citizens. This should be done with the aim of ensuring stability in all facets of government, and promoting accountability across all spectrums.

  • Xaba holds a BA degree in Governance and Political Transformation from the UFS and was the UFS SRC member for Arts and Culture in 2022. He writes in his personal capacity.

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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