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06 March 2023 | Story Prof Francis Petersen | Photo Sonia Small
Prof Francis Petersen
Prof Francis Petersen.

Opinion article by Prof Francis Petersen, Rector and Vice-Chancellor of the University of the Free State.
Amid the various threats currently faced by our beleaguered country, there is one that many people seem oblivious to – but which has the potential to speedily and decisively send us over the precipice: civil society’s attitude of accepting rampant corruption, crime, and economic degradation as if it is something inevitable and unavoidable. This current culture needs to be urgently exposed and addressed. And higher education institutions have a definite role to play in preventing its destructive potential, says Prof Francis Petersen.

References to a ‘culture of acceptance’ most often conjure up a positive connotation – especially in our South African context with its unfortunate history of ‘non-acceptance’, prejudice, and discrimination. The term usually refers to an attitude of embracing a diversity of views, backgrounds, and opinions, and accommodating differences along political, cultural, gender, and religious lines. But there is a new, much more ominous ‘culture of acceptance’ taking root in our society: that of adopting an attitude of indifference and even complacency when it comes to those phenomena that are eroding our future prospects as a nation. 

Challenges to our state 

There can be little disagreement about the general state of decay we are currently experiencing in our various structures of governance on nearly all levels. This includes government departments that are not functioning properly, as well as state-owned enterprises such as Eskom, SAA, Prasa, and Transnet, which are either crumbling away or have virtually collapsed. Some of these structures have been systematically eroded through corruption, inefficiency, and cadre deployment over a sustained period of time. On top of that, we have escalating crime, ranging in manifestation from gender-based violence to mafia-style organised crime syndicates that are infiltrating and effectively paralysing some of our most important sectors, such as the construction, mining, and agriculture industries. All of these contribute to a sagging economy, preventing the economic growth that our country so desperately needs in order to move forward. South Africa’s recent greylisting by the Financial Action Task Force (FATF) as a result of insufficient mechanisms to monitor and combat money laundering and terrorist financing activities, further compounds an already dire situation, as it places severe strain on our financial services sector and negatively affects our ability to attract investment.  Last minute efforts to amend legislation and prevent greylisting were evidently insufficient and much too late. Our current disconcerting national financial status is clearly the result of not only poor government performance, but also a totally deficient policy environment – the combined effect of which serves as a definite deterrent to investors. 

Indifferent response of civil society creating inflated risk 

What is also a growing cause for concern though, is civil society’s prevailing response to these calamities. One of the things that the COVID-19 pandemic has illuminated, is how quickly society can adapt to a ‘new normal’. Things that were altogether unthinkable and outside the frame of reference for most – such as a national lockdown, social distancing, and mandatory public mask wearing – quickly became acceptable and commonplace after it was introduced. Regrettably, the same trend is visible when it comes to our response to the government’s non-performance, rampant crime, and economic pressures that we are currently experiencing. The difference is that there is no greater common good that should make us summarily accept the current status quo. We get frustrated and angry when we hear that products cannot get to ports or markets; we shake our heads when we hear about yet another corruption scandal or another murder; we get irritated when power blackouts increase. But instead of speaking out or voicing our concerns in some constructive way, we tend to quickly and quietly find individual ways of working around obstacles such as load-shedding schedules, rather opting for making alternative arrangements and putting up with all the ramifications caused. 

While on some level it is admirable that ordinary South Africans are showing resilience and innovation and increasingly choosing to do things for themselves amid government failures, it is, however, also indicative of an alarming downgrading of our societal values. Things that would create a public uproar in a developed state, and almost automatically lead to picketing and a widely publicised calling to book of the responsible office holders, seem to hardly get a second glance in our battle-weary South African society. We have lowered the bar of what is seen as acceptable. And from there, it can be an alarmingly fast downhill slope to becoming a truly failed state. The fact that government often goes the route of not responding to public objection, should add fuel to the fire of outcries and protests. But unfortunately, it often has the opposite effect, where government silence is met with public silence and a growing sense of national resignation. 

What needs to be done 

The question is: has our current situation created a society that has simply accepted its fate? Or has it created a society that has become more innovative and creative, actively navigating current challenges, and finding new solutions to societal issues independent of government?  And what should be our reaction to the challenges we currently face? 

As with many things, I believe the truth lies somewhere in the middle. While it is vital that ordinary South Africans and the private sector find ways of working around government shortcomings, it is just as important that they remain vocal, pointing out government failures and questioning the conduct and decisions of our elected leaders. Public reaction should, however, not stay with objections alone, but evolve into physical action. There should also be a willingness to work with struggling government institutions and incorporate other role players in order to find real solutions together. As a responsible citizenry, simply being quiet and complacent is our worst option. 

Role of higher education sector 

As vital vehicles in the shaping of our next generation of citizens, universities and other higher education institutions have an important role to play in the current government versus civil society impasse. I believe this role is twofold: on the one hand, we need to educate and encourage young citizens to stand up and make their voices heard against injustice and non-delivery in the public sector. On the other hand, we are also cultivating a next generation of leaders. While they are gracing our campuses, we need to contribute towards instilling ethical values in our leaders of tomorrow and equipping them with a vision that is much broader than just individual needs and wants, but that encompasses the needs of our society as a whole. Our education efforts should always have this all-important developmental focus, where graduate attributes such as critical thinking, community engagement, ethical reasoning, and an entrepreneurial spirit are nurtured and employed in order to build a better country. We should also impress on our youth the importance of forming partnerships and collaborating with various role players from different areas of expertise and sectors of society to work together to reach this common goal.

How do we do this?

I believe an important and obvious basic building block that institutions of higher learning are already providing – and should increasingly be enabled to do – is the creation and expansion of competency through teaching, research, and engagement. By equipping our students with knowledge and skills, we empower them to play an active role in taking our country forward. This should be complemented by social justice competencies, where curricular and co-curricular programmes and activities are used to grow a sense of social justice in our leaders and citizens of tomorrow. These social justice initiatives should also be coupled with the creation of robust platforms for dialogue on topical issues of national interest, where government voices are invited, incorporated, and challenged, but in a constructive, mutually respectful context. Universities should finally also employ their research capacities in various fields to come up with real, practical, and sustainable solutions to societal issues, presenting government with new, innovative, and effective ways of addressing our current national dilemmas. 

It is vital that our leaders – and followers – of tomorrow are sensitised to an important fact: as much as South Africa needs competent, ethical leadership, it also needs an alert, active, involved citizenry to keep those leaders in check. Because a government that is dysfunctional and a society that simply accepts it, makes for a very dangerous combination.

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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