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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

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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