AN EVALUATION OF THE CONSTITUTIONAL COURT’S CONTRIBUTION TOWARDS THE ATTAINMENT OF AN OPEN
SOCIETY IN SOUTH AFRICA
By
MARGARET LANGLANDS
Dissertation
submitted in fulfilment of the requirements for the degree
MASTER OF ARTS In
POLITICS
In the
FACULTY OF HUMANITIES
At the
UNIVERSITY OF JOHANNESBURG
SUPERVISOR: PROF. A.J. VENTER
NOVEMBER 2007
DECLARATION
I, Margaret Langlands, hereby declare that the work contained in this dissertation is my own original work and that I have not previously submitted it, in its entirety or in part, at any university for a degree.
ABSTRACT
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.
ACKNOWLEDGEMENTS
Thank you to my supervisor, Prof. Albert Venter, for his prompt and insightful responses to each chapter submitted to him over two demanding years.
Thank you to the extraordinarily helpful staff of the Constitutional Court library, an exceptional academic resource that must be Johannesburg’s best-kept secret.
Thank you, too, to my husband, who uncomplainingly proof-read hundreds of pages and provided sound editorial advice, as well as much-needed support to a very mature student.
And thank you to my children, their spouses, and my grandchildren, who have also provided support and advice and only moderate ridicule.
TABLE OF CONTENTS
Page
Chapter One – Introduction to the Study: Purpose, Methodology and Structure
1.1. Introduction 1
1.2. Purpose of the Study 7
1.3. Research Method 8
1.4. Literature Review 8
1.5. Structure of the Study 11
Chapter Two – Overview of Karl Popper’s The Open Society and its Enemies
2.1. Introduction 12
2.2. Historicism 13
2.3. The Spell of Plato 15
2.4. Plato’s Descriptive Sociology 16
2.5. Natural Laws versus Conventions 17
2.6. Plato’s Political Programme 19
2.7. Plato on Leadership 21
2.8. Political Rule as the Prerogative of the Philosopher King 23 2.9. Utopian versus Piecemeal Social Engineering 25 2.10. Plato’s Rationale for Championing the Closed Society 26 2.11. The Aristotelian Roots of Hegelianism 29
2.12. Hegel 30
2.13. Marx’s Historicism 33
2.14. Economic Historicism 34
2.15. Marx’s Theory of the State 35
2.16. Marx’s Prophecy 38
2.17. The Social Revolution 40
2.18. Capitalism and its Fate 42
Page
2.19. Marx’s Ethics 44
2.20. The Sociology of Knowledge 45
2.21. Rationalism versus Irrationalism 46
2.22. Popper’s Conclusion: History Has No Meaning 49
2.23. Conclusion 51
Chapter Three – The Nature and Characteristics of Popper’s Conception of the Open Society 3.1. Introduction 53
3.2. The Scientific Roots of Popper’s Philosophy 53
3.3. Popper’s Political Philosophy 55
3.4. Popper’s Own Definition of an Open Society 57
3.5. The Closed Society 58
3.6. Towards the Open Society 59
3.7. Definitions of an Open Society 60
3.8. Popper’s Imperatives for an Open Society 62
3.8.1. First Imperative: Limits and Controls on State Power 62
3.8.2. Second Imperative: Negative Utilitarianism 64
3.8.3. Third Imperative: Progress in Stages: Piecemeal Social Engineering 66 3.8.4. Fourth Imperative: Establishment of Institutions for Criticism 67
3.8.5. Fifth Imperative: Respect for Individualism and Diversity 68
3.9. The Nature of the Open Society 71
3.10. South Africa – an Open Society? 74
3.11. Conclusion 76
Chapter Four – The South African Constitution and an Open Society 4.1. Introduction 78
4.2. References to an Open Society in the Constitution 79
4.3. The Importance of the Concept to the Constitution 81
4.4. Reference to an Open Society – the Record 84
Page 4.5. Why Include the Idea of an Open Society in the Constitution? 87
4.6. Intentionalism versus Enablement 91
4.7. Does Constitution Provide Enabling Conditions for an Open Society? 92 4.8. Constitutionally-Established Institutions for Providing Criticism 96
4.8.1. Chapter 9 Institutions 97
4.8.2. The Media 99
4.8.3. The Political Opposition 102
4.8.4. The Courts 104
4.9. State Compliance with Court Orders 109
4.10. Government Attitude to Criticism 113
4.11. Conclusion 116
Chapter Five – The Judgments of the Constitutional Court in Interpreting, Expounding and Promoting the Open Society
5.1. Introduction 119
5.2. Rights and Powers of the Constitutional Court 122
5.3. Interpretation of the Constitution 123
5.4. The Constitutional Court’s Approach to Interpretation 125 5.5. The Constitutional Court’s Interpretation of ‘Open Society’ 127 5.6. The Constitutional Court and Freedom of Expression 130
5.7. The Political Role of the Judiciary 134
5.8. Constraints on the Courts 138
5.9. The Counter-Majoritarian Dilemma 142
5.10. Activism versus Deference 146
5.11. State Non-Compliance 153
5.12. Transformative Constitutionalism – Towards the Open Society 155 5.13. Public Perceptions of the Constitutional Court 160
5.14. Time for a More Activist Role 162
5.15. An Actively Pro -Poor Strategy 166
5.15.1. The Indian Example 167
Page
5.15.2. The German Example 168
5.15.3. Public Interest Litigation for South Africa? 169
5.15.4. Conclusion 173
Chapter Six – Summary of Principal Findings and Conclusions 180
Bibliography 188
Acronyms 199
Appendices
Appendix 1: Constitutional Court Statistics 201
Appendix 2: Living Conditions in South Africa, 1995 and 2004 202 Appendix 3: Judges of the Constitutional Court 203
