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07 March 2024 Photo SUPPLIED
Gcina Mtengwane teaches in the Community Development Programme at the Centre for Gender and Africa Studies, University of the Free State, Qwaqwa Campus.

Opinion article by Gcina Mtengwane, Centre for Gender and Africa Studies, University of the Free State.


The notion that 2024 could echo the transformative spirit of 1994 holds weight. South Africans find themselves in a pressing need for positive social, economic, and political change. Yet, the avenue through which this change will manifest - a reformed African National Congress (ANC), an opposition party or a coalition government - remains unchartered territory. South Africa is on a downward trajectory. As various international indexes project corruption and poor governance, noting also that those indexes may not at times be accurate, the lived experiences of South Africans echo despair, disillusionment, and a betrayal of promises for a better life, particularly among the working class and the poor. 

The first democratic election in 1994 heralded an era where a new government had the opportunity to represent the interests and aspirations of all citizens, countering the discriminatory policies of apartheid. It fostered optimism for equal access to opportunities and life chances regardless of race, religion, gender, class, or ethnicity.

However, the transition to democracy, like any new venture, brought forth both opportunities and challenges. Actualising the vision of a ‘rainbow nation’ necessitated tangible legislative reforms and macroeconomic strategies beyond mere rhetoric. Consequently, initiatives such as the Reconstruction and Development Programme (RDP) in 1994, the Growth, Employment and Redistribution (GEAR) strategy in 1996, The Accelerated and Shared Growth Initiative for South Africa (ASGISA) in 2005, the new Growth Path in 2010, and the National Development Plan vision 2030 were implemented. While the efficacy of these macroeconomic frameworks remains contested, there is a consensus that more can be done and perhaps differently.

Parallels between 2024 and 1994? 

South Africa grapples with high unemployment, alarming crime rates, and an education system ranked among the world’s worst. South Africa is among the most unsafe countries in the world with an estimate of 27 494 murders recorded in 2022-2023. Ranked at 50th out of 63 countries, its education system is rated among the worst performing in the world. The education system fails to equip matriculants with practical skills for sustainable livelihoods. Additionally, funding exclusions and high dropout rates plague higher education, exacerbating the crisis. NSFAS has proposed defunding certain qualifications from its budget and half of those who do make it to universities drop out in their first year.  Moreover, South Africa measures the highest income inequality in the world, with a Gini coefficient of around 0.67, race being a key factor in a society where 10 per cent of the population owns more than 80 per cent of the wealth.

Persistent income inequality and deeply entrenched racial disparities are hindering the opportunities for upward social and economic mobility for the majority, notably the youth. The unemployment rate among youth, which includes persons between 15 and 35 years old, is around 60%. There is low support for and a high failure rate of start-up small to medium enterprises (SMMEs) with between 70% to 80% failing in the first five years of operations. There is a high rate of youth neither in employment nor in education or training (NEETs).  Data shows that 32.6% of graduates struggle to find work within the first two years of graduation, implying that for some, regardless of educational attainment, there is no optimism regarding the prospects for a better future.

The issues highlighted above are just some of the issues facing South Africa. These challenges underscore the urgent need for well-conceived and actionable solutions. A governing party must demonstrate clear policy direction and effective implementation mechanisms to uplift the most vulnerable while safeguarding the rights of all citizens, irrespective of race. However, certain radical policy proposals, like affirmative action and land expropriation without compensation, pose significant ideological divides.

Opportunity to nurture democracy

South Africa boasts over 30 years of democratic experience, providing invaluable lessons from past elections. There is a unique opportunity to nurture democracy and freedom, as is enshrined in the constitution, ensuring the well-being of current and future generations. The prospect of a coalition government looms large, potentially marking a historic shift. While unprecedented at the national level, coalition governance has been trialled in various municipalities including Johannesburg, Nelson Mandela Bay, and Ekurhuleni. However, these experiments often resulted in governance failures, characterised by instability and policy dissonance, rather than cohesive leadership. Political rivalry among the parties undermined service delivery and good governance, leading to the failure of coalition governance at the local government level.

Policy misalignment emerges as the key impediment to coalition success. The recent formation of the ‘Moon-shot pact’ underscores the necessity for aligned policy positions among coalition partners to avert governance crises.

Voter implications

Voting entails entrusting a political party with the responsibility to serve the interests of millions. It demands an informed understanding of the party’s policies as outlined in its manifesto. While individual charisma may sway voter preferences, informed decisions are imperative amidst South Africa’s challenges and opportunities. 

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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