Prof. Koos Malan: “Weak” courts can’t fix State failures - but the private sector “stands in”…

Litigation has become the go-to weapon to fight unconstitutional laws, lack of service delivery, abuse of power. In this interview with BizNews, constitutional law expert Professor Koos Malan says: “…we have such large scale malfunctioning of the executive, such large scale malfunctioning of the administration, covering each and every aspect of South African society and also having an effect on each and every possible right, specifically constitutional rights, that one can conceive of, that people are actually forced to go to the courts in order to try to seek help.” However, he warns that a court order amounts to “something like a wish” because “the moment you deal with this systemic problem, the courts are actually not in position to give any remedies, to give any real help, any real proper interference that could steer the executive, steer the relevant organ of state, whatever, in a positive direction simply because of the fact that the state has to such an extent crumbled, to use that strong word, that eventually the court's order won't mean anything.” Instead, Professor Malan hails the private sector for “superbly standing in for the failure of the State - also within the justice system”. Professor Malan further describes how the judiciary is “always somehow in step with the dominant elite” - and says: “…let’s say for a moment, the African National Congress becomes weaker and the Democratic Alliance becomes stronger. Then the political landscape changes and the changed landscape implies that the Constitutional Court has more leeway, more liberty, not to take into account those risks that might be involved…”.Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox at 5:30am weekdays. Register here.Support South Africa’s bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.If you prefer WhatsApp for updates, sign up to the BizNews channel here..Watch here.Listen here.Edited transcript of the interview.Chris Steyn (00:01.484)Litigation has become the go-to weapon to fight unconstitutional laws and abuse of power. We speak to constitutional law expert, Professor Koos Malan. Welcome, Professor.Koos Malan (00:13.041)Thank you very much.Chris Steyn (00:15.682)Professor, is the country being increasingly governed through the courts? And if so, why?Koos Malan (00:20.881)Yeah, no, the answer to that is actually no. It is true that litigants, people whose rights are being infringed or violated are in fact increasingly going to courts in order to try to vindicate those rights. But that interestingly does not mean that the courts are actually govern the country. What it is an indication of is that we have such large scale malfunctioning of the executive, such large scale malfunctioning of the administration, covering each and every aspect of South African society and also having an effect on each and every possible right, specifically constitutional right that one can conceive of, that people are actually forced to go to the courts in order to try to seek help.Not interestingly, and we will speak about that, that that will necessarily help. But that is actually something very critical that litigants, that citizens are actually doing in order to try to somehow find help somewhere since the legislature and specifically the executive government in general, the administration are clearly not capable of discharging their functions in terms of the constitution of and in that way securing a proper functioning state. Courts can give remedies, they give judgments, they give orders and so on, but that in itself, and that's the distinction between on the one hand, people going to court in contrast to on the other hand, the courts governing which they are in fact not doing.A kind of an outcry almost that you find of litigants that they have to go to the courts in view of the fact that we are to such a serious and a grave extent grappling with a malfunctioning state.Chris Steyn (02:32.493)Overall, how effective has this flurry of litigation been?Koos Malan (02:39.728)In many cases, where you deal with fairly limited issues, for example, malfunctioning in the sense of an administrative action that wasn't properly carried out, malfunctioning in the sense of one or two or three or four, only a few in number, grants that have not been paid out to...people claiming such grants. And some other cases, fairly limited malfunctioning. In that sense, it is quite effective. But the most important thing, and I think the two things that we actually have to focus upon in order to answer your question are these. When you deal with what one might refer to as a systemic malfunctioning of the state, and...we are in fact dealing with systemic malfunctioning. We can cite many examples of that. Well, let's cite one or two examples because I think that addresses your question. We're dealing with malfunctioning. We're grappling, we are confronted with malfunctioning in the sense of water supply in a large municipality such as Johannesburg, which does not properly take place. A systemic malfunctioning. Why? Because it affects a large number of people. Systemic malfunctioning also in the sense, for example, of electricity problems that we're grappling with, which are affecting millions and millions of people daily. And at the moment, the indications are that our problems are actually bound to become more serious. Malfunctioning in the sense of violent crime, organised crime, murder, and so on and so forth which the police unfortunately are not properly capable of dealing with. Malfunctioning in terms of the South African Army, the Security Services, who simply don't function. At one stage it was regarded a couple of decades ago as most probably the most potent army in the entire African continent. Now not so anymore.Koos Malan (04:58.384)All of us are keenly aware of what has happened in the DRC. Our government and our Army are in fact grappling with huge problems simply taking those people back from the DRC to South Africa. So if you go to a court in order to try to address any of these issues that I've just referred to, issues which are systemic, in that it really goes to the very basis of the functioning of state departments and other organs of state. Systemic in the sense that it also affects large numbers of people, millions of people. You can go to a court and the court can possibly try to give you an order in your favour, but will it eventually help? The answer is no, the court can't give you an order relating to the generation and the transmission of electricity simply because it will be, I wanted to say close to impossible, no, not close to impossible. It will in fact be impossible to give effect to that order simply by reason of the fact that the state simply does not possess the necessary know-how and also the necessary administrative and technical skill and abilities to actually give effect to that. So what does the court order then amount to? Strictly speaking, it amounts to something like a wish and not really an order. Eventually it's an abstract thing. It is written down somewhere on paper and it's expressed, articulated by judges, but eventually it doesn't touch base. It won't be given effect to. So that I think clearly demonstrates these examples, clearly demonstrate the fact that the moment you deal with this systemic problem, the courts are actually not in position to give any remedies, to give any real help, any real proper interference that could steer the executive, steer the relevant organ of state, whatever, in a…Koos Malan (07:25.328)…in a positive direction simply because of the fact that the state has to such an extent crumbled, to use that strong word, that eventually the court's order won't mean anything. And that also, I think, gives an answer to your question as to whether the courts are actually governing. The courts can't govern in these cases because they need a proper, able, and willing public service, organs of state to actually give effect to those. If they can't, well, then the executive can't govern, neither can the courts. So that's the situation that you have. I think a very important thing to understand. We tend to speak about the three branches of state power, three branches of governmental power, the legislature, the executive and the courts, the judiciary.And then very often, also as a result of the whole narrative that we have had in South Africa since 1994, we look upon the courts as almost tantamount in power, tantamount in authority than the executive and the legislature. That is in fact not true at all. Strictly speaking, courts don't have any power. Yes, courts might have and should have authority. And the authority is vested in the fact that judges are regarded as intelligent people, as people with a tremendous amount, so it should be, not that it's always like that, with a large amount of intellectual authority they are looked up to, hopefully, and as a result of which they can trust in the executive and in the legislature to give effect to their orders, but they don't have anything to their own disposal with which they can actually secure that those orders will be given effect to. That also invokes something else, and that is in terms of constitutional doctrine, we say, well, now the courts are independent and impartial. Now let's leave the impartiality there for a moment. It's also an interesting question.Koos Malan (09:53.477)But alongside the theoretical, the abstract independence of the courts, there's something else that we do not speak about when we refer to constitutional doctrine. And that is the practical dependence of the courts. The courts are dependent in a variety of respects. In the first instance, who appoint the judges? Well, okay, the Judicial Service Commission has an important role to play in that. But eventually, if you do the count, you'll see that the governing party always have a majority in the Judicial Service Commission. And that is not an inherent weakness in the South African constitutional order. Let me immediately emphasise that. That is something that you actually encounter in all constitutional systems, also all democratic constitutional systems. But then there's something else regarding the dependence of the courts to which I actually have already referred to without calling it by that name. And that is the fact that in order for a court's order to be given effect to, the court relies upon the executive. The court relies upon the Police Service. The court relies upon the very State Department against which a judgment is being given. And if they, and if such the Police or such State Department is either unwilling or unprepared or both to give effect to that order, it won't be given effect to. So in that sense, the courts are very weak. Much has been written upon that, about that. And the weakness is vested in the fact that the courts have to grapple. That's an inherent phenomenon of courts of the judiciary. I have to grapple with the fact that they are weak and dependent upon the other two branches.Chris Steyn (11:57.678)So if litigation in many cases can't save South Africa or South Africans, what recourse do they have beyond the law?Koos Malan (12:07.728)It's a very good question. And I think it's very important that that issue should be tackled. It brings us back to something which goes to the very basis of constitutionalism and to separation of powers and checks and balances. The point is whenever we speak about constitutional law and branches of power, we think of state power and we then refer to the three branches that I've referred to. I’m not going to repeat it, it's common knowledge. But very important, very important as to recourse is the discussion that the two of us are having here. Is the media. Was it not for the media, for an active and and broadly competent South African media, something like State Capture would never have been disclosed. It only came to the fore after the media have properly done their work. Then you have a huge array of organisations, organisations of civil society, out there. Corruption Watch and a huge number of others. It can preoccupy us until tomorrow morning. You have organisations representing certain specific sections of the public. You have AfriForum and Solidarity. And in a very important sense, even though that is not acknowledged in as many words in the Constitution, as something that plays an important part in securing the proper functioning of a constitution and of giving effect and body to the idea of constitutionalism. It is those organizations and the public, and I should obviously also mention the private sector. Those are the institutions that we on a daily basis have…Koos Malan (14:33.858)….recourse to in order to give effect to constitutional rights, in order to provide for our safety and so on and so forth. Perhaps just something, last point to mention here. Was it not for the private security sector in this country, can you imagine what our security situation would have been? I mean, we have a private security sector which in manpower is three times, if not more, stronger than the South African Police Services, which are by and large competent and effective, which actually stand in for the state institutions that are supposed to secure those interests. So there you have a good example. So we can elaborate on that. But I think that gives at least a sense of what we are on a daily basis in South Africa and more and more so having recourse to use that word, which we simply use in order to protect us, in order to protect the public, and in order to give effect to constitutional rights. So the interesting thing is that by and large, the private sector, to my mind, actually play a more important role than protecting and promoting constitutional rights than state institutions, which under Section Seven of the constitution are actually the responsible bodies that have to bear that responsibility.Chris Steyn (16:09.6)Meanwhile, many people feel that lawfare is sometimes used by opposition political parties just to gain political points or to score political points. How do you feel about that?.Read more:.Top Afrikaner leaders & ANC NEC members meet….Koos Malan (16:27.088)Yeah, I think there is substance in that impression that can in fact be the case and very often it is in fact the case. However, there are very strong restrictions, very strong limitations to that. For example, in the first place, you run the risk that if you go to court an opposition party, or an institution regarded as being in opposition with government. They run the risk that if they approach the court with a case which have no substance, they will in the first place not be successful. They won't get any positive result. And they also run the risk, not a high risk, I should say because the general principle is if you approach the court and even if you are unsuccessful, if only you can prove that there was an arguable case to argue, the court won't give a cost order against you, but you do run the risk of a cost order. So you must take that into account. And then generally also there is the approach among the courts. I think one can actually call that a constitutional principle as such, that the courts will themselves, and that's part of the restricted scenario in which courts are operating, the court will not give an order if the court knows beforehand that it will actually involve itself in that way in lawfare, in unsubstantiated lawfare. And there's also something else that I should mention here: Courts act within a constitutional, within a political scenario. Part of the political scenario is that courts will have to guard over their own, what is called, I think very correctly, institutional security. Courts knows, courts know, and I've mentioned that, courts know…Koos Malan (18:48.49)…that they are dependent upon the executive and to that extent also on ruling party because the executive mainly is constituted by the people from among the ruling party. So courts cannot go about in such a way as to antagonize too much inordinately the executive, too much inordinately the governing party. Then it will place itself on the risk. They have to prepare that. That is something which is not articulated by courts. Obviously it's not. Simply by reason of the fact that, I mean, the judges are not unintelligent people. They won't engage themselves in a kind of judicial rhetoric that actually shows that they have to take into account political risks.But if one takes into account what is actually happening within a constitutional system, any constitutional system, then obviously one has to be aware of that. Now, especially in the days, and it is still like that, when the African National Congress was the dominant force in South Africa, it's still the dominant force, but that dominance has diluted to a certain extent. But especially if...courts, the highest courts have to operate within a scenario where they will have to account for the possible responses of a very strong governing party, which will, if they go out of their way in antagonizing them, will jeopardize their institutional security. Well, then they will see to it that such security is in fact not jeopardized. So, and that brings us back to your question, the question of lawfare. So you can take lawfare that far, but not further, not further, because courts themselves, as I've said, have to take into account the very detrimental effects for themselves if they too readily, if they are viewed as too readily being engaged in that against the governing party. It might be an interesting thing…Koos Malan (21:16.108)If the African National Congress gets weaker in future, then perhaps courts will act differently because in that case, let's say for a moment, the African National Congress become weaker and the Democratic Alliance become stronger. Then the political landscape changes and the changed landscape implies that the Constitutional Court have more leeway, more liberty, not to take into account those risks that might be involved, had they been in the position as before, where you had such a potent dominant party like the situation up to last year, up to the election last year.Chris Steyn (22:11.768)Now, is it any wonder that many people have lost trust in the courts and feel that the justice system in South Africa is becoming increasingly broken, totally overburdened, and to some extent, even captured?Koos Malan (22:30.128)Yeah, let me, it's actually a very huge question that you've asked. Let me begin with the question of capture, because the question of capture addresses the question of impartiality. That's the question which I said 20 minutes ago, I'm not going to address, but your question requires me to address that. Courts are inherently, well supposed to be impartial. That's the difference between a court on the one hand and the executive and the legislature on the other end. But, and that's very important, and some people will take offense, but then you take offense against a fundamental truth. Impartiality only goes that far and not further. For example, any state, and that's also true for the South African state post 1994, as something which you can refer to as the dominant and the official state ideology. And in a one-party dominant system, like dominated system like South Africa, that is called transformation, or I refer to that as transformationism. Let me not go into the details of that now, simply because it's an ideology. Now when an applicant for a judicial appointment appears before the Judicial Service Commission, such applicants are normally tested on, how do you feel about transformation? Why is that? It's simply because by and large, the Judicial Service Commission with, as I've said, a majority of ANC people on it, will try to make sure that the judges that will be appointed will not somehow disrupt the fundamental assumptions and the fundamental objectives of transformation, of transformationism. What does that mean in terms of impartiality? It means that they will see to it, try as far as possible to see to it that yes, impartial they should be…Koos Malan (24:50.852)…when you get to a criminal case and when you get to a breach of contract or when you get to a run-of-the-mill kind of case, but not when you deal with an ideological matter which is regarded as a matter that somehow involves an important point pertaining to the ideology of transformationism. So, impartiality go that far, but not further. It should not jeopardize from a government point of view and from the judicial service point of view, the fundamental assumptions and objectives of transformation. You can clearly see that in a large number of cases, of judgments in which whenever a case pertaining to transformation is heard by the highest courts, by the Supreme Court of Appeals specifically, and then specifically then mostly by the Constitutional Court. You can predict, and it might sound outrageous to say that, but there's a lot that can be adduced here as proof of that fact. You can predict that the Constitutional Court will give judgment in favour of transformation. Will they say so? Yes. In such cases, they'll even say so. They won't say we give effect to the governing party's policy or ideology of transformation, but they'll use the word transformation. So there might be a number of possible interpretations of a piece of legislation of conduct, of the constitution and so on. A number of interpretations. It's never that certain, but they will also always rather select a mode of interpretation which somehow serves the objectives of transformation. So in other words, it's not a question of capture. It's a question of that's the way in which a constitutional order functions. The judiciary is always somehow in step with the…Koos Malan (27:16.4)…with the dominant elite and is in fact part of it and also plays its part in a subtle indirect way of promoting the assumptions and the objectives of the dominant elite. That is how it functions. Was it like that before 1994? Yes. Is it like that now? Yes. Will people be upset about this comparison? Yes. But that doesn't detract from the fact that that is generally spot on, it's true. It also functions like that in the United States. We know how judicial appointments works there, especially in the Supreme Court. It functions like that all over. So I think what has happened is that we have placed nd we've invested much too much trust in what judicial independence and specifically what judicial impartiality means. That's the way in which we went into the post 1994 constitutional dispensation. We simply accepted that, well, if you have a democratic system, as we call our system, if you have a system of constitutional supremacy and so on and so forth, if you have the highest high court and the Supreme Court, other courts also that have such very broad scope to review cases also pertaining to government conduct, also pertaining to legislation, we accept it without any further ado, that that means that the court will of necessity act completely impartial also when it comes to ideological matters. Completely naive, I should say, completely wrong. That's the one point. Sorry, it's a long answer. But then we have a huge number of problems also with judges. We have good judges. We also have very good black judges, female judges, and so on. I think very often you can, yeah.Koos Malan (29:39.803)There's no problem as far as that is concerned. There are sufficient good black lawyers with a considerable amount of experience. Also perhaps a number of black lawyers which do not necessarily subscribe to the tenets of transformationism, but they will find it as difficult as someone of another race or colour to be appointed as a judge. There's no question about that. But okay, then we have the normal things that we're grappling with. A court, criminal courts can only function properly with the assistance of the Police Services. So if the police services are not properly functioning, well, then you will have huge problems in your criminal courts, okay?If you have, and that brings us possibly to the point of the judges, if you have judges who are properly too slow with their cases, if you have people appointed as judges who do not exactly know, who do not have the experience, experience is absolutely crucial for a judicial appointment, who do not actually know how to administer, so to say, the very difficult and the very busy motion court in the North Gauteng, that's Pretoria High Court, it's really busy. Then cases get delayed and so on, same applies also to, not only to motion court, but also to actions. As a result of which at the moment, in Pretoria at least, where I am based, where you get a date for trial now in 2020, 29, 2030, what is that? That is the kind of administrative problems as a result of state failure that we have all over the scene in municipalities, in many other state departments and so on. You also have it in the Department of Justice, unfortunately. Department of Justice, as I've said, which is also, and the courts, which is also…Koos Malan (32:04.834)…which are also dependent upon the police and so on and so forth. So then you have this malfunctioning. So what do you have to do then? And that perhaps also touches on something that you have asked a couple of minutes ago. What is our recourse? Well, your recourse in that case, if you can't go to court, you must rather opt for cases to be arbitrated. You must rather opt for...effective negotiation and reconciliation and so on and so forth. Lawyers nowadays are very afraid with that. They actually do that. And in that sense, the private sector to a considerable extent also stand in for the failure of the state. We've moved a long way in South Africa in that direction. If you really want to see what the actual constitution over and above alongside the written constitution looks like, look at the functioning of our wonderful private sector, our wonderful civic sector, our wonderful media with a lot of problems also, but by and large, they are superbly standing in for the failure of the state also within the justice system. But okay, yes, I hope I've answered you. Sorry, I've perhaps rambled a little bit.But I think that gives you an answer.Chris Steyn (33:34.732)No, was very informative, Professor. That was Professor Koos Malan, constitutional law expert speaking to BizNews. And I'm Chris Steyn Thank you, Professor.Koos Malan (33:47.855)It's my pleasure, thank you.

Prof. Koos Malan: “Weak” courts can’t fix State failures - but the private sector “stands in”…

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