O Regan The double shift judge

IF there were a contemporary South African equivalent to LA Law or thirtysomething, it might include the following scene:

He (crusty judge and self-appointed custodian of traditional hierarchies): You live in Cape Town … and you have small children?

She (perky young female lawyer up for a judgeship): I do … one who is five and one who is three.

He: How are you going to manage it with the court sitting here in Johannesburg?

She: Fortunately, I am married to somebody who accepts the responsibility of parenting as much as I do, and I think his attitude is fully supportive. He is a practising advocate but accepts that he will have to move his practice if we came to Johannesburg.

He: Oh, you would move to Johannesburg?

She: Yes, certainly. He would accept that …

He: That answers my question.

He was Judge Michael Howard, judge president of Natal; she Professor Kate O’Regan. The interchange took place during her public interview as one of the candidates for the Constitutional Court. She was successful: she is now one of only two women out of the 11 most august judges in the land and, at 37, the youngest by far.

Certainly, none of her male colleagues was subjected to such intricate domestic probing, and she has every reason to suspect, in Judge Howard’s questions, the tone of disapprobation.

But what makes Judge Kate O’Regan so remarkable is not simply her academic record (culminating with a glittering PhD from the London School of Economics) or her breathtaking prococity; it is also the fact that she embraces the very condition — the “double shift”, as she calls it, of the working mother — that caused Judge Howard such concern.

I met Judge O’Regan exactly one week before the Constitutional Court was to convene for the first time, to consider the life-and-death issue of capital punishment. Our interview had to end sharply at five — for no other reason than that she needed to spend some time with her children. Could we continue tomorrow, then? “Well, I’m in meetings all morning, then I have to fetch the children at about noon. Try me in the afternoon. Or before I take them to school.” There was neither apology nor shame.

Believe it or not, Judge O’Regan nearly turned down her nomination because “right from the start it was an horrific notion trying to balance being a judge and my family life”. She’d make great prime-time material. There is Grace van Owen in her intense professionalism; Hope Steadman in her ambivalence. She is quintessentially South African leftysomething; one of that generation of white professionals — like Fink Haysom, Halton Cheadle or Edwin Cameron — who fought the system in court and now find themselves writing legislation and chairing commissions; she, like them, has traded jeans and loose sweaters for power suits. And she looks as comfortable in a collared blouse and navy blazer as they do in pinstripes.

She came of age with them but was, in the words of a contemporary, “always cautious, always professional before all else”. She puts it this way: “I’ve always had the view that my best contribution was as a lawyer who recognised that lawyers shouldn’t run the struggle.” She laughs, negotiating the gravitas of her new position: “I suppose that’s a very strange thing for a Constitutional Court judge to say, I know.”

In those days, the world of labour law was a boys’ club. She may now have the constitution on her side, but she is still a woman in a boys’ club. She is a member of the court, in part, due to her record as an advocate for womens’ rights. But when she speaks of gender inequity, she sounds more like Grace or Hope than Frene Ginwala or Cheryl Carolus: her issues are those of a professional woman — the glass ceiling, maternity leave, co-parenting. She does not use phrases like “gender oppression” or “women’s emancipation”.

Indeed, she admits to no personal experience of oppression: “At home, I was expected to be a professional woman. My mother was a professional, a dentist, and I never felt I was unequal. Even at university, I never had a sense I was disadvantaged because I was a woman, but that doesn’t mean I don’t know that many women are unequal. Inequality is structural in our society in so many ways.”

In legal circles, there is much talk about whether the new Constitutional Court is going to be “procedural” or “substantive” — in laymens’ terms, whether it is going to simply test laws against the constitution, or whether it is going to take an “activist” role by making substantive decisions itself.

Is Judge O’Regan — along with the only other woman member of the court, Judge Yvonne Mokgoro — going to play an activist role in equalising the status of women? She has a healthy scepticism about “the closeness between judicial decisions and social change — I’d be overstating it if I were to say that the court will have a dramatic impact on women’s lives. But that doesn’t mean I don’t think that our work shouldn’t be involved in interpreting and applying the substantive values that underly the constitution.”

No one doubts her intelligence, but many believe she was selected over the older and more experienced Professor June Sinclair for what is cynically termed the “white woman’s spot” because of her politics: she declared, during her interview, that she was a member of the ANC.

She is uncomfortable with the notion that “judges must be political eunuchs; that the idea of political neutrality must translate into meaning that we as judges mustn’t have political views”. But while she is clear that “our role does have obvious political implications”, she admits that she finds it difficult negotiating the wholly new concept of judicial distance. “We are adjudicators, rather than law-makers or policy-makers. And so we have to claim a status as being dispassionate and neutral, no matter what our individual backgrounds.”

As an academic, she is used to talking ideas through, throwing them around. Now, when someone asks her what she thinks of the death penalty, she has learnt how to deflect the question “by throwing it back and asking them what they think. It’s a social way of ducking the issue without sounding rude.”

Perhaps that is what distinguishes her from some of her older male colleagues. As a young woman, she cannot afford to sound rude. When the 11 judges went on a visit to Germany, German officials kept on mistaking her for the tourguide. “I was subjected to a constant barrage of German,” she laughs. “Really, all you can do is smile and explain. It’s quite funny, really.” Imagine Judge Ismail Mahomed or Judge Albie Sachs seeing the humour in being mistaken for a tourguide.

She may look, to some, like a tourguide; but she holds one-eleventh of the power to determine whether the state has the right to kill people. Perhaps even the former supreme court judges who are now members of the Constitutional Court, who have had alleged murderers before them in the dock, feel the weight of their first decision.

But Judge O’Regan is a first-timer: she admits to being overwhelmed. And yet she seems, to the observer, thoroughly collected; as if she has absorbed the thousands of pages of argument, planned her questions and worked out the issues.

One does not get the sense that she has legal arguments banging about her brain as she takes the kids home from school.

She thinks it’s “damn good” that “there’s someone on this court who knows what grocery shops look like, who knows about lift clubs from school and what children’s worries are, and who’s involved in society in a way that others aren’t”.

Granted, the majority of South Africans have never heard of a lift club. But the majority of South Africans are working mothers and, in very real ways, Judge O’Regan represents them.

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