/ 14 October 2008

‘The building captures the best of South Africa’

Sello S Alcock asks Kate O’Regan about her tenure at the Constitutional Court

What do you think the class of ’94 judges will be best remembered for?
I can only tell you what has mattered to me. The court has sought – even in the very fabric of the building — to be open and accessible. It has consciously looked to understand what South Africa is and what each judgement will mean for South African people. The court thinks about the way the law works so that it is not closed to the experience of ordinary South Africans and does not behave in an authoritarian way.

Do you think the court has achieved this?
I think there are always limits to what a court can do at the end of the day. I really do believe, for example, that providing people with houses or a decent education is, in government terms, the task of the legislature and executive.

You spoke earlier about the character of your colleagues and used words such as integrity. Will the same traits apply as the court fills the five vacant seats?
It’s always hard for us to see where maybe things could have been done better. New people will come in and perhaps see what we have not been able to see. There are many people out there who will be outstanding judges on this court and take it forward with great distinction.

It’s perhaps a pity that so many of us will go at once, because there is an institutional memory that might get lost. However, I hope many of the people out there who would make fine judges will make themselves available.

Will we see a shift in the institutional culture of the court?
Changing five members of the court will change the identity of the court in some way; how it will change it I have absolutely no idea.

I have a lot of faith in the legal task: you sit down and you read facts and you read the law. Courts can’t just decide what they want — you are significantly constrained by the facts and the law. I don’t know what will happen next, but I do know that we have a strong Constitution.

What traits or values should those stepping into your shoes have?
Judges have to take an oath to uphold the Constitution, to decide cases without fear, favour or prejudice. That oath is very important to me and I think that you are looking for people who are committed to the constitutional project.

Are you finding it easy to sleep at night given recent political attacks on the court and inferences that it has behaved in bad faith?
These are challenging times but any student of constitutional democracies knows that constitutional democracies are not quiet places.

The point about constitutional democracies is that the conflict is on the outside, not the inside. In authoritarian states often the conflict is not visible in courts or in other places. In this society the conflict is on the outside, and that’s fine. The job of the press and the courts is the same, our jobs don’t change because it gets noisy.

Anybody who assumed we were going to have a quiet constitutional democracy has not read his history.

What is dismaying, I suppose, is the sense one gets from the sound bites that the seriousness of purpose with which this court goes about its business is not recognised by many in our broader society.

Are you going to miss this place?
I am sure I will, it’s a wonderful place, you can see what a wonderful office I have [laughs]. You know I have made very close friends here and I have had a wonderful PA and law clerks.

These relationships I will definitely miss. I have worked very closely with the librarian, who is excellent.

The court is a good place to work — there are good people here and the building captures the best of South Africa: it is vibrant and open and colourful.

Fear, camera, action
”Oh God, what have I done?” This was Kate O’Regan’s reaction to news of her appointment to the Constitutional Court.

At the time of the announcement she was in Toronto attending a conference. She says she was ”horrified” at the prospect of carrying such an immense responsibility.

After a challenging and public interview with the Judicial Service Commission, O’Regan, with 10 others, had been confirmed by former president Nelson Mandela as a judge of the highest court in the land.

By her own admission the 36-year-old associate law professor at the University of Cape Town was an outsider ”in every possible sense of the word”.

”I had not come from the Bar, I was not a judge and I was very young.”

But once O’Regan had overcome her stage fright, there was no turning back.

With her advocate husband and two small children in tow, she packed her bags and moved to Johannesburg.
Jo’burg was not new to the Capetonian. O’Regan was born in Liverpool, England, and moved to South Africa with her parents at age seven.

She worked as an attorney at the Johannesburg firm Webber Wentzel from 1982 to 1985, mostly on labour and land rights cases.

”I really enjoyed that work. It was a great time and one of the areas where one suddenly saw possibilities for changing South African society,” she says.

O’Regan says she had originally wanted to be a journalist but ”sort of stumbled” into law.

After matric at Springfield Convent in Wynberg, Cape Town, O’Regan studied for her bachelor of arts and law degrees at UCT.

In 1981 she obtained a law masters at Sydney University in Australia, then capped her academic career with a doctorate from the London School of Economics.

She has not ruled out a return to academia when she leaves the court in 2009.