An evaluation of the constitutional court's contribution towards the attainment of an open society in South Africa

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