Prof Malherbe was employed in public service from 1980 to 1990 he served as a constitutional planner in which capacity he acquired extensive knowledge and experience of democratic constitutional reform and lectured widely at universities and other institutions on this topic. He also acquired considerable practical knowledge and skills in legislative drafting. He travelled abroad on a number of occasions for research on democratic constitutional systems and in 1988 conducted an extensive tour of Britain, Belgium, Switzerland and the USA for the purposes of studying different constitutional systems. During the same year he was appointed Chief Director of Constitutional Planning in the former Department of Constitutional Development and Planning, in which capacity he was responsible for advice to government on democratic constitutional options for a changing South Africa.
In 1990, Prof Malherbe accepted a position as Professor of Public Law at the University of Johannesburg, formerly known as the Rand Afrikaans University. In this position he was involved in under-graduate, post-graduate and extra-curricular courses in constitutional law, comparative human rights studies, education law, statutory interpretation, and legislative drafting. For years he led a short program in legislative drafting that he developed at UJ 20 years ago. In 2005 he was an organiser of an international conference on legislative drafting in Cape Town. Since 2018, Prof Malherbe offers similar programs in legislative drafting at the University of Cape Town. Over the years he supervised several masters and doctorate students. In 2012 one of his students obtained her doctorate degree on the drafting of delegated legislation. He also lectured at many universities on different topics and served on the examining panels of various universities. At UJ, he served multiple terms on the Dean’s Committee of the Faculty of Law, and for years was the chair and co-chair of the Student Disciplinary Committee. He was also a longstanding member of the editorial team of the Faculty’s Journal for South African Law (TSAR). He undertook several study tours in Europe and the USA, read papers at numerous international conferences, and lectured at various universities. He served twice as visiting professor at the University of Salzburg, Austria, and at the Inter-University Centre for Education Law and Policy in Antwerp, Belgium.
From 2008 to 2017, Prof Malherbe visited Kenya twice a year for a week-long seminar on legislative drafting, offered by Training Consultancy Agency, based in Nairobi. In that period, over 300 senior public servants and private practitioners from every East African country, including Somalia and South Sudan, attended this unique capacity-building program. Prof Malherbe retired at the end of 2010, but continues to lecture in South Africa and abroad on the topic of legislative drafting. This includes regular workshops for the Gauteng Provincial Legislature on various legislative issues.
Prof Malherbe is the co-author of several textbooks on constitutional law and of three popular publications on the South African Constitution of 1996. He is co-author of Constitutional Law/Staatsreg, a seminal text book on South African constitutional law already running into its sixth edition, and a prescribed or recommended work at several South African universities. He is the co-editor of four publications on education law, and contributed to several national and international textbooks on education law. He has published over a hundred articles on constitutional change and development, constitutional systems, and intergovernmental relations (14 publications), parliamentary procedures, and the protection of specific human rights, in particular religious freedom (12 publications), education rights (31 publications), and the right to academic freedom (9 publications). At the end of 2010, he received a prestigious award for one of his outstanding academic articles. (A list of publications can be provided if necessary.)
Prof Malherbe has extensive experience of law reform processes, the conduct of workshops and training seminars in diverse environments, and of facilitating dialogue on policy and law.
He was closely involved in different ways in the South African constitution making process of the nineties. In 1993, he served as an adviser on local government issues at the Kempton Park negotiations on the interim Constitution of 1993. During 1994 he drafted the standing rules for the newly established Gauteng Provincial Legislature. He still advises the Gauteng Provincial Legislature on constitutional and procedural matters, and has also advised the Legislature on language issues and during 1998 drafted a Language Policy Bill for the Legislature. In 2011 he drafted a unique provincial bill on the prior scrutiny of draft delegated legislation (regulations), which was subsequently adopted and implemented by the Legislature, and he still presents regular workshops at the Gauteng Provincial Legislature on the effective application of the act. Recently, he was closely involved in the drafting of new institutional statutes for the North West University and the Stellenbosch University.
From 1995 to 1996 Prof Malherbe served as an adviser in the constitution making process conducted by the Constitutional Assembly on the South African Constitution of 1996. In this capacity he gained invaluable experience of and insight in very challenging constitutional negotiations, and the drafting of complicated constitutional legislation.
He still regularly advises governmental, educational and other bodies, including religious communities, on constitutional and other legal matters affecting them.
Apart from his interest and research in structural issues, such as constitutional legislation, parliamentary procedures and intergovernmental relations, Prof Malherbe is keenly interested in the protection of human rights, education law, and religious freedom. Until his retirement, he was an executive member of the South African Education Law Association (SAELA), and the South African Inter-University Centre for Education Law and Policy (CELP). In these capacities, he was closely involved in spearheading the development of Education Law as a separate field of study in South Africa.
Since 2008, Prof Malherbe has been an executive member of the Council for Religious Rights and Freedoms, a body responsible for the drafting and promoting of a South African Charter of Religious Rights and Freedoms. This initiative by civil society has been endorsed by most religious communities of South Africa. He has addressed several national and international conferences and other meetings and events on the background and content of the Charter.
Young people and missions to the nations are the passion of Prof Malherbe and his wife, and since his retirement, they have been serving as counsellors, advisers and life coaches at All Nations Family, an international missions organisation based in Cape Town. They present regular marriage seminars, and serve the organisation and the wider community in various counselling and mentoring capacities. This includes regular visits to several African countries. Prof Malherbe and his wife are the co-authors of three books on marriage and relationships.