Professor Koos Malan accepts fellowship at Sakeliga’s new Centre for Constitutional Dynamics

Prof Malan 2

Dear Sakeliga member and friend

It is our pleasure to announce the establishment of Sakeliga’s new Centre for Constitutional Dynamics and the appointment of Professor Koos Malan as its first Fellow.

The announcement comes at an important time for Sakeliga’s mission. In the decade ahead, we will have to craft a good business environment despite unprecedented levels of state failure and manifold attempts at harmful state intervention. We will have to litigate like never before, and we will have to develop institutions capable of sustaining independent economic activity. Both these undertakings require deep and unconventional constitutional thought.

The purpose of the Centre, and fellowships like Professor Malan’s, are therefore to assist Sakeliga and businesspeople in understanding and shaping constitutional change for a favourable economic environment in all communities where our members do business. We foresee that further fellows will be appointed in future to support Sakeliga in such advisory capacities.

Professor Malan will be familiar to many of you as a speaker at Sakeliga events over several years. He was also involved in presenting Sakeliga’s parliamentary input in the controversial issue of so-called expropriation without compensation a few years ago (read here). Less visible, but as important, was the benefit Sakeliga derived during this time by drawing informally on his insights regarding litigation and strategy. Thanks to member support, Sakeliga now has dedicated access to his constitutional expertise and advice as well as his assistance with the development of the Centre as a standing unit at Sakeliga.

The Centre’s activities will include:

  • Evaluating the actual and dynamically changing state of the constitutional order in South Africa, through theoretical research and practical analysis.
  • Advising Sakeliga and businesspeople in our constitutional responsibility to constructively shape the changing constitutional order in South Africa.
  • Developing and assisting a network of legal practitioners, jurists, and litigants in understanding and favourably influencing constitutional dynamics.

A dynamically changing constitutional order

Since it might be somewhat counter-intuitive, the prospect of Sakeliga shaping a changing constitutional order is something I should elaborate on. After all, isn’t it usually held that constitutions are formal, fixed documents that can only be changed by political majorities in parliament, subject to strict procedural requirements?

Understood solely as written instruments, constitutions are indeed hard to change. Yet, while written amendment is indeed the most visible part of constitutional change, there is more to constitutionalism than just formal written constitutions. Jurisprudence is perhaps the most obvious example, but outside state structures there is also everyday interpretation, shifting norms, changing power relationships, and economic realities. The greatest possible degree of legal certainty is obtained by assessing all these and other constitutional forces as accurately as possible, not by ignoring some for purposes of simplification.

Not only in South Africa, but all over the world, the actual distribution of powers and duties in a society often changes without a written or explicit constitutional amendment. It is to constitutionalism in this practical sense that Professor Malan pays special attention. In his analysis, the actual distribution of powers and duties in a society comprises the real constitution of that society. He traces how not only organs of state, but all organised spheres of society, can shape constitutional change regardless of the procedures of parliaments. A complete picture of a constitutional system requires assessment of not only a constitution, legislation, and jurisprudence, but indeed also the everyday norms and practices that emerge in accordance with or in spite of official legal documents.

With such an analysis, one finds regarding South Africa that the actual constitution changed more or less continuously over the years for the worse as well as for the better, often without any express amendment of the Constitution itself.

At Sakeliga, we are interested in constitutionalism in this practical sense. It is about a scenario in which it is within the power of organised business to be a constructive force in the greater order. A force that contributes to new constitutional realities by way of ground-breaking court cases about legal interpretation as well as by way of ground-breaking practical answers to state failure.

With the aid of the Centre and its fellows, we will seek to better shape constitutional affairs to ensure a good business environment for all communities in which our members do business.

About Professor Malan

Professor Malan’s fellowship comes on the back of an influential fifteen-year career as Professor of Public Law at the University of Pretoria.

  • Academic & professional qualifications
    Koos Malan is a constitutional jurist and Professor Emeritus of Public Law. He holds the degrees BA (Pret) BA Hons (Political Science) (Pret) BIuris (Unisa) LLB (Unisa) LLD (Unisa). 
  • Academic & professional experience
    Before joining academia Koos Malan was a state prosecutor and thereafter a magistrate. From 1991 to 1999 he was a lecturer in practical legal training at Justice College, the training arm of the Department of Justice. He joined academia in 2000, was Professor of Public Law at the University of Pretoria from 2007 and appointed Professor Emeritus from September 2022.
  • Books
    • Politocracy: An assessment of the coercive logic of the territorial state and ideas around a response to it (2011) (link)
    • There is no Supreme Constitution: A Critique of Statist-individualist Constitutionalism (2019) (link)
    • Studente-inleiding tot die konstitusionele reg (2022) (link) 

Piet le Roux
CEO, Sakeliga