Abstract
M.A.
This study focuses on the concept of an open society, a concept that was given
currency by the philosopher Karl Popper in his 1945 book, The Open Society and
its Enemies. Popper provides five imperatives for an open society: state
power must be limited and strictly controlled; the aim of public policy must be the
reduction of misery; massive reconstruction must be foresworn in favour of
incremental changes, guided by critical feedback from the citizenry; institutions to
enable free criticism are essential to an open society; and individualism and
diversity must be cherished as the source of a richer and more valuable critique.
This study examines the South African Constitution to evaluate the extent to
which it, as an institution, contributes to the attainment of a Popperian open
society, and concludes that it provides the enabling conditions to attain four out
of five of Popper’s imperatives. Where it does not succeed is in providing for
incremental social change: on the contrary, it enshrines a vision of a radically
reconstructed society. Ironically, that vision seems to have been renounced by
the state, which has instead adopted an austere economic policy designed to win
global approval. This policy has elicited widespread criticism, as have other
government policies. Government response to criticism has been far from the
positive acceptance envisaged by Popper, ranging from dismissal to outrage to
blatant attempts to silence criticism through regulation or legislation. In the
case of criticism from the courts (in the form of judgments against government
agencies) response has frequently been non-compliance with court orders, even
with Constitutional Court orders.
The Constitutional Court represents one of the institutional checks and balances
on the state demanded by Popper, having considerable powers of judicial review
to guard against the abuse of state power. An evaluation of the Court’s
contribution towards the attainment of an open society suggests that initially the
Court was somewhat reticent about exerting its powers, to the extent of being
taxed by some with undue deference towards government. In recent years,
however, the Court has shown signs of increased assertiveness, finding for
government on fewer occasions and attaching structural interdicts to its orders.
It nonetheless requires something more, if the Constitutional Court is to make the
contribution it should towards attaining an open society, and this study concurs
with a suggestion that the Court undertake public interest litigation, as other apex
courts have done. The open society envisaged by the Constitution (and by
Popper) requires that the Constitutional Court be vigilant for abuses of state
power, provide an ongoing critique of public policy through its judgments, and
even accept its share of responsibility for realising the reconstructive vision
portrayed in the Constitution, through actively identifying, investigating and
addressing injustices in our society.