Law and Mobilization against State Capture

Abstract

This paper examines an important feature of the night before the “New Dawn” – the phenomenon of state capture in South Africa. It is primarily interested in analyzing the civil society mobilization against such state capture, specifically the legal and organizational aspects. After exploring the phenomenon of state capture, this paper investigates the use of legal mobilization theory to describe and contextualize the organization of South African civil society against state capture, with attention to the more general phenomenon of corruption. Section One covers state capture, drawing on the 2017-2018 work of the academic network, the State Capacity Research Project, to analyze and attempt to give a definition of the term. It is argued here that the term serves to identify a particular political project, one extant during the Zuma administration and drawing a degree of its force from the apparent failure of black economic empowerment. Section Two outlines the civil society mobilization against the state capture project, noting two significant features of such mobilization: that it formed to a significant degree around legal actions and that these actions were undertaken by a second generation of post-apartheid public interest law organizations. Then, Section Three describes two significant and representative instances of such legal mobilization. The first consists of litigation engaged in by a second-generation South African public interest law organization, the Council for the Advancement of the South African Constitution (CASAC), in order to ensure the impartiality of the national prosecuting authority. The second instance of litigation took place from 2009 in the social grants payments sector, aiming at ensuring the provision of social assistance, a socio-economic rights benefiting nearly one-third of the South African population. Section Four uses legal mobilization theory from socio-legal studies to explore in further depth the mobilization of law against corruption in South African society. Here, it is significant to make the distinction between institutional anti-corruption mechanisms and impact litigation on the one hand and collective legal mobilization against state capture on the other. The Conclusion offers some reflections on topics for further research including the place of business in the mobilization against state capture and the emergence of new civil society actors.

The Black Industrialist Programme’s prospects to the advancement of developmental state in South Africa

“…Although ideally this is how BEE is supposed to be, in action, it has been seen as a hindrance to economic growth and liberalisation (Brunette, Klaaren & Nqaba 2019). The repurposing of state-owned enterprises (SOEs) to serve corrupt leaders and the redirection of funds meant for BEE led to corruption that has culminated in the commission of inquiry into allegations of state capture, corruption and fraud in the public sector, including organs of the state (Klaaren 2021). There have also been reflections that the policy is cumbersome for businesses and thus poses a hindrance to the country's economy and prospects for transformation (Krüger 2011).…”

The Black Industrialist Programme’s prospects to the advancement of developmental state in South Africa

“…Although ideally this is how BEE is supposed to be, in action, it has been seen as a hindrance to economic growth and liberalisation (Brunette, Klaaren & Nqaba 2019). The repurposing of state-owned enterprises (SOEs) to serve corrupt leaders and the redirection of funds meant for BEE led to corruption that has culminated in the commission of inquiry into allegations of state capture, corruption and fraud in the public sector, including organs of the state (Klaaren 2021). There have also been reflections that the policy is cumbersome for businesses and thus poses a hindrance to the country's economy and prospects for transformation (Krüger 2011).…”