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…”

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