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176 Chapter 10
5.3 Democracy and openness
5.3.1 Principle of democracy
Cases such as Khosa 70 — which stressed the political community’s
responsibility to provide non-citizens who find themselves on the
margins of that community with the material conditions for agency —
and Fourie 71 — which recognised that gays and lesbians have an
entitlement to public recognition of their intimate relationships —
evince the Court’s transformation of its dignity-based approach to
fundamental rights interpretation and limitations analysis from
dignitas and a narrow conception of the public interest to something
far more expansive, if not all-embracing. This far more substantive
vision of dignity allows us to make sense of a variety of other
constitutional values precisely because this conception of dignity
embraces such notions as equal concern and equal respect, selfactualisation,
self-governance, and collective responsibility for the
material means required for agency.
But what the Court has still not done is give distinctive content to
each of the five values enshrined in FC section 36. For the most part,
the Court has viewed the four other values through the lens of human
dignity. According to the Court, dignity provides a common measure
of value which can help bridge the division between equality and
freedom, or between negative and positive rights, or between the
individual and collective aspects of our autonomy. However, we have
also seen that dignity does not adequately address all conflicts nor
does a reliance on dignity appear to do adequate justice to those outgroups
whose participation in our social and political life remains
marginal at best.
It is particularly surprising that the Constitutional Court has not
done more to develop the meaning of ‘openness’ and ‘democracy’ —
two features of our society that clearly demarcate the boundary
between apartheid South Africa and post-apartheid South Africa. In
our view, a greater elaboration of the meaning of ‘an open and
democratic society’, and a closer connection of these values to
dignity (especially dignity qua self-governance), might result in a
jurisprudence more inclined to accommodate plurality and
difference. Similarly, an engagement with ‘democracy’ might
strengthen our commitment to securing spaces in which ‘counterpublics’
can challenge dominant ideas and engage in alternative
discourses. In this section, we consider the possibility of a
complementary understanding of the values underlying the Bill of
70
Khosa (n 60 above).
71 Fourie (n 14 above).