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09 July 2024 | Story André Damons | Photo Stephen Collett
Thought-Leader panel discussion July 2024
The University of the Free State (UFS) hosted its UFS Thought-Leader panel discussion in collaboration with the Free State Literature Festival, featuring Gert Coetzee, former editor, Volksblad (left); Sanet Solomon, Lecturer, Department of Political Sciences, Unisa; Prof Francis Petersen, Vice-Chancellor and Principal of the UFS (centre, facilitator); Ebrahim Fakir, Consultant Election Analyst, Electoral Institute for Sustainable Democracy in Africa (EISA); and Prof Erwin Schwella: Director, Centre for Good Governance in Africa, School of Social Innovation, Hugenote Kollege.

Even though there might be concerns about South Africa’s newly established Government of National Unity (GNE) and the associated challenges, there are also hope, optimism, and a lot of opportunities that come with this new reality.

This was according to the panellists at the University of the Free State (UFS) Thought-Leader panel discussion, titled Navigating a new era of democracy in South Africa. The discussion took place on Thursday (4 July) as part of the 2024 Thought-Leader Series presented in collaboration with the Free State Literature Festival. The discussion was facilitated by Prof Francis Petersen, Vice-Chancellor and Principal of the UFS.

The panellists included Ebrahim Fakir, Consultant Election Analyst from the Electoral Institute for Sustainable Democracy in Africa (EISA); Prof Erwin Schwella, Director of the Centre for Good Governance in Africa, School of Social Innovation at the Hugenote Kollege; Sanet Solomon, Lecturer in the Department of Political Sciences, College of Human Science at the University of South Africa; and Gert Coetzee, former editor of Volksblad.

Substantive uncertainty

Fakir started the conversation by saying that over 30 years, South Africans have experienced the use of authority without accountability and power without responsibility. The seventh democratic elections may usher in a new era – an era of substantive uncertainty.

“Substantive uncertainty is important for any democratic society, because it means that anyone who wishes to acquire power can no longer simply rely – as the governing party has for the past 30 years of our democracy – on the support of voters in an unqualifying way. Which means that in a year of substantive uncertainty, a key aspect and a key element of democracy, namely uncertainty, comes into play.

“In so far as uncertainty and substantive uncertainty can be a boon in a democracy, it can also be a bust. Why? Because substantive uncertainty comes not just with the uncertainty of political parties assuming a level of political support in society, it also means that a set of rules by which we engage in political behaviour become uncertain.

“One of the most interesting features post the 29 May elections is the uncertainty about the formation of the government. There are no rules governing how coalition must or should be formed. There are no guiding principles on how this should happen,” said Fakir.

According to him, there are potential benefits, but also significant risks. The first benefit is that there is now space for citizen activism and for influence of political parties.

“There are significant risks to what we do now. If there is going to be a fundamentally new policy regime, in what direction will this flow? I think we must hold out hope for this new form of coalition government, but we shouldn’t be blind to the fact that there are two significant features that will impact the evolution of this GNU: South Africa goes to a local government election in two years’ time.”

“The ANC goes into its own elective conference in a few years’ time when President Ramaphosa comes up for a potential replacement. And this is a significant risk for how the GNU evolves and which partners continues to remain in this, and which don’t.”

No trust in a single political party that governs

One of the things that started happening in 2019/2020 was a push for people to select their government not only from political parties, but also to have individuals representing them at national level. This led to the introduction of the Electoral Amendment Bill. This all came together with the 2024 election where you had independent candidates participating.

“For a number of years, South Africa enjoyed a single party-dominated state, where you had stability in terms of how your country would be governed and who would be in government. The drop in the support of the ruling party has created a lot of challenges and a number of concerns for people,” Solomon said.

According to Solomon, this does not necessarily have to be a scary time for the country, as one of the great things about democracy is that it moves. Eventually, all democracies move from a single party that dominates to a more competitive democracy.

“This is also something to be excited about. One of the concerns was that South Africa could be like Germany where it took six months to form a government, but fortunately we didn’t find ourselves in a situation like that.”

“While there are a lot of concerns, I think the results from the 2024 elections showcases that South Africans don’t necessarily trust a single political party to govern the country, but rather want different political parties to come together. While this GNU will come with challenges, I also think it holds many opportunities,” she concluded.

A new ethos is needed

Prof Schwella introduced three sets of variables; the first is somewhat philosophical and therefore on the level of inspiring ideas. The second is much more institutional. It links to having all the ideals of democratic government and governance, but is it governable? This links to the third, which is more practical, namely – can you implement it impactfully?

According to him, the current disposition has hopefully relieved the country from not only continued state capture, but from the capture of inertia to create new, exciting, and inspirational opportunities.

“A new ethos of continuous quality improvement at the level of implementation through a process of assessing needs to be established, which will then have to be continuously built back into the redesign of the system. There is a lot of hope and optimism in that.”

“Share that journey with us, co-create an exciting and prosperous new South African state. We nearly lost it in the first 30 years of democracy. We stuffed it completely under apartheid. But now is the opportunity. Now is the chance. Let's get together and just do it.”

Be careful of what you wish for

For Coetzee, the way forward is not clear cut, and the country now has a window of opportunity. How this opportunity will be managed is what will set the future, he said.

“We can see where we are now and the main positive of the government of national unity is that we have a government of national unity – a little more than a month ago this would have been unthinkable.”

He talked about the composition of the cabinet and said the DA should be careful of what they wished for.

“The DA got six very important portfolios. Which enables them to make a huge difference, but each of these portfolios can also be a poisoned chalice. Of course they have Home Affairs, so if there's a delay with my passport now, I'm going to be fed up with the DA.”

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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