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22 December 2023 | Story Dr Harlan Cloete | Photo Supplied
Dr Harlan Cloete
Dr Harlan Cloete is a research fellow in the Department of Public Administration and Management at the University of the Free State.


Opinion article by Dr Harlan Cloete, Department of Public Administration and Management, University of the Free State (UFS)


This week my Great Governance ZA podcast reached the 100-episode milestone. About a year ago I interviewed Prof Jaap de Visser on the platform and he argued that coalition governments are a natural consequence of our South African electoral system and that we must get used to this reality. On the 5 December we marked the passing of Nelson Mandela who led the first coalition government in South Africa, called the government of national unity. That coalition did not last beyond two years with the National Party walking out in 1996 because the ANC would not agree to extend the government of national unity beyond 1999, as well as a failure to reach consensus on key economic choices and policies. And so since 1996 the ANC has the sole mandate to ensure economic justice.

Today there is no greater failure than the failure of our economic policies. The fact the World Bank declared South Africa the most unequal country in the world is a direct consequence of our economic policy choices over a period of 30 years. We are faced with deep-rooted structural inequality, persistent generational poverty and rising youth unemployment. These problems will persist due to deteriorating state capacity and inappropriate policy management. How long will state indifference last? No one knows. The National Development Plan (NDP) review concludes that instead of a capable state, we have an increasingly corrupt state. And let me remind you that this corruption did not start in 1994, it is so deeply entrenched in our DNA – both the private and public sectors. This country was built on this political economic collusion resulting in centuries of economic and political injustice.

Fought for freedom and all we got was democracy

The NDP states that instead of a seamless planning system, we have a disjointed planning system that is poorly implemented and misaligned to the strategic goals of the NDP. Instead of a more inclusive and equitable economy, we have economic policies that do not seem to be achieving the transformation that is required. Social cohesion has fallen off the government priority list and is articulated superficially (Stronger Together – four rugby world cups and more divided than ever). South Africans experience some of the highest levels of violent interpersonal crime globally, especially violence against women.

And so we continue to be brilliant at identifying what is wrong but weak in implementing what must be done. I conclude that the constitution is not working, as summed up by a colleague: we fought for freedom and all we got was democracy. And so there is this deep sense of cynicism with our current politicians and the political system that continues to condemn people to misery and making them slaves to new forms of slavery, alcohol abuse being but one. South Africa has some of the highest rates of youth binge-drinking. The reality is that this democracy is working for the elites not the poor. The statistics show that we have about 62 million people, of which 45 million are eligible to vote, with close to 27 million people on the voters’ roll. In the 2019 election only 19 million people voted (42%) and in our COVID election in 2021 only 12 million voted (27%).

The reality is that we have more than 100 registered parties and more parties joining the ballot paper, the latest is the Activist and Citizens Forum calling for Dr Allan Boesak to lead. This leads me to conclude that people either form political parties because they see politics as entry into the middle class (given our high unemployment rate) and or they are genuinely disillusioned with the status quo and feel this to be the only way to express their dissatisfaction.

But there is opportunity in the crises. We now know what good leadership looks like, it is not what people say, it’s what they do. So what does a desired future look like? The NDP concludes that leadership and active citizenry will get us out of this deep hole. The reality is that the bar for political leadership is so low. Ours is a system of representative and participatory democracy. There is a total disconnect between the politicians and the people – social distance. The goodwill of the people is simply not matched by administrative and political will. That government is not prepared to meet people halfway, instead the system is designed to make you dependent (grants) in a disempowerment model. South African must decide. Are we active or passive citizens? In the broad sense (business, academia and civil society formations). Active citizens are involved, helping to shape society as expressed in a grassroots governance course spearheaded by colleague Ina Gouws at the University of the Free State (UFS). This requires hard work and deep commitment to build institutions. This is not elitist. In this, new knowledge and models are developed that serve to liberate people. Active citizenship irritates and keeps producing evidence demanding excellence and redistribution of wealth.

Citizen Coalition

If we think coalition government is the answer, we are making a big mistake. Such a government maybe even be more complex given the different egos demanding to be fed.  Rather a Citizen Coalition (social solidarity) is needed, where citizens lead and government follows. Unless we make that transition in our heads, we will forever be at the mercy of politicians trapped in a system that rewards only them. We cannot talk of a coalition government if we do not talk about citizen coalition – where we put your purpose together. Affluent well-resourced schools will continue to flourish unless we collaborate and share wealth. Such a citizen coalition is built on five principles viz namely, leadership behaviours that are based not on rent-seeking, economic inclusion, equal access to health care (dignity), equal access to education (a means to an end) and accountability systems.

The October 2022 report from Good Governance Africa suggests that excellence in municipal performance to a lesser extent is the consequence of which political party is in charge and more linked with governance, population, and provincial dynamics. However, what the study also showed is when you have ethical and competent leadership steering the ship to ensure that municipalities are properly governed in terms of Administration, Planning and Monitoring, and Service Delivery then there is a greater chance of success.

In October I was invited by the municipal council of the Theewaterskloof municipality to facilitate a three-day strategic conversation using my Governance 5iQ model as point of departure. This model asks five questions. Why we do what we do (vision)? How is it being done (mission)? How will we know at any given time we are on track (M&E)? If we are not on track, what are we doing about it (consequence management)? And finally, how we lead and learn (knowledge management). I believe the Governance 5iQ could be applied in conversation around the viability of a Citizen Coaltion.

The desired state is inclusive coalition governance not coalition government that is achieved through building coalition governance competence on all levels of society. The cornerstone of this coalition governance is a partnership between civil society, the private sector, government, and academia, as concluded in the NDP review. Where we co-create a desired future. And this must be youth led. It can be done, we owe it to the youth who rightfully question the motives of those who are trying to fix problems they themselves created over the past three decades. This is hard work. But there is no better time than the present.

Dr Harlan Cloete is a research fellow at the UFS. His main research interest is exploring evidence-based HRD governance systems in the public sector, with a keen interest in local governance. He is the founder of the Great Governance ZA Podcast https://anchor.fm/harlan-ca-cloete

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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