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28 May 2024 Photo Supplied
Dr Ina Gouws
Dr Ina Gouws is Senior Lecturer: Programme: Governance and Political Transformation, Department of Political Studies and Governance, University of the Free State.

Opinion article by Dr Ina Gouws, Senior Lecturer: Programme: Governance and Political Transformation, Department of Political Studies and Governance, University of the Free State.

Community-based governance refers to the systems and processes involved in the interface between community participation, community engagement, and public sector decision-making. This requires a partnership between civil society, business, and government. For this partnership to work, all partners must commit and invest in these processes for the sake of better services to communities. In recent years, communities have had to approach community-based governance with regional and local governments as mostly absent partners.

As South Africa approaches the national and provincial elections this week, voters need to reflect on the indispensable role civil society organisations have assumed in bridging the governance gap left by ineffective local and provincial governments. These organisations, driven by a profound commitment to community welfare, have extended their reach beyond their designated mandates, skillsets, and financial capacities to address pressing community needs. Their tireless efforts have underscored the significance of community-based governance and the urgent need for collaboration between civil society and government institutions.

Embracing community-based governance

In most provinces across South Africa, communities have found themselves grappling with the consequences of governance failures, ranging from inadequate service delivery to systemic corruption. Faced with these challenges, civil society organisations have emerged as beacons of hope, leveraging their grassroots networks and intimate understanding of local dynamics to deliver essential services, advocate for change, and empower communities.

However, the burden should not fall solely on the shoulders of civil society. As the nation prepares for a new phase of post-election governance, incoming national and provincial governments must acknowledge and appreciate the pivotal role played by these organisations. They must recognise the wealth of expertise, connections, and trust that civil society brings to the table.  By rebuilding the fractured relationship between government and communities, which is fundamental to effective community-based governance, a collaborative approach is therefore required. Moreover, governments must move beyond mere acknowledgement and actively engage with civil society organisations as equal partners in the pursuit of sustainable development and social justice. This entails fostering open channels of communication, soliciting input from communities and civil society in policy formulation and decision-making processes, and allocating and then PROVIDING resources to support the initiatives and projects driven by these organisations.

By embracing community-based governance and forging genuine partnerships with civil society, provincial governments can tap into a valuable reservoir of knowledge and experience that is essential to addressing the complex challenges facing South African society. Together, they can work towards a future where governance is not just about top-down directives, but is rooted in the principles of inclusivity, responsiveness, and accountability. South Africans are not experiencing such partnerships at all in most provinces. Voters MUST reflect on this before they cast their votes.

Reimagine governance in South Africa

Voters must not forget the impact an ineffective national and provincial government has had on their communities. We must vote with the expectation that our national government's ultimate goal must be to ensure that communities at the grassroots level receive the services and support they need for the people living there to thrive. This includes providing essential utility services such as water, electricity, and sanitation; social services such as health care, education, and welfare; and fostering economic growth through investment towards job creation and infrastructure development.

Provincial governments are supposed to play a crucial intermediary role by bringing national objectives to the regional level, tailoring strategies and policies to the specific needs and circumstances of their areas. They therefore set the tone for local governance, and by extension, community-based governance, by interpreting national policies and ensuring their implementation in a way that addresses local priorities. South Africans have not experienced this level of good governance in recent years; some never have.

So, if this interpretation and implementation does not happen – which is the case in most provinces – the tone set for community-based governance is one of disarray, failure, and suffering. There are of course a few cases that are the exception.  South African voters can change this by voting for a national and provincial government that will impact communities in constructive ways and pave the way for the local government elections to follow.

We are on the cusp of a new electoral cycle. As voters, we must seize this opportunity to reimagine governance in South Africa – governance that puts the needs and aspirations of communities at its core, nurtures collaboration between government and civil society, and paves the way for a more equitable and prosperous future for all. With this vision, we can truly realise the promise of democracy and ensure that no community is left behind. These may be national and provincial elections, but you are voting for your community!

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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