Justice Kate
O’Regan
“It is unarguable that South Africa remains a society deeply scarred by its history. The deep inequalities that persist are visible reminders of the effects of apartheid and colonialism. Until these scars are healed, the vision of our Constitution will not have been achieved.”
Justice Kate O’Regan was a practicing attorney representing many of the emerging trade unions and communities threatened with eviction under the apartheid laws. She was one of the first judges appointed to the Constitutional Court at the young age of 37. She is an inspiration to many, especially young women who have their sights on sitting on the country’s highest bench.
Corruption Watch
Early Life and Career
Kate O’Regan was born in Liverpool, England, and grew up in Cape Town. She obtained a BA degree in 1978, an LLB (cum laude) in 1980 from the University of Cape Town (UCT), an LLM from the University of Sydney with first class honours in 1981, and a PhD from the London School of Economics in 1988.
I certainly remember growing up with a family with a strong sense of disapproval of apartheid. And during my school years I did quite a lot of social justice outreach kind of work, and then when I went to university I did as well.
Kate O’Regan
Justice of the first bench of the Constitutional Court
For four years in the 1980s she practised as an attorney in Johannesburg specialising in labour law and land rights law. She acted for a wide range of trade unions, anti-apartheid organisations, and several communities facing the threat of eviction under apartheid land policy.
We should never be complacent about the rule of law; if the price of liberty as Learned Hand said, is eternal vigilance. Laws make being vigilant easier, in a world where many leaders are actively dismissive of the rule of law, the role of laws is crucially important.
Kate O’Regan
Justice of the first bench of the Constitutional Court
In 1988, she joined the UCT Labour Law Unit as a researcher. In 1990, she became a senior lecturer in the Faculty of Law at UCT. Over the next five years, she was a founding member of both the Law, Race and Gender Research project and the Institute for Development Law at UCT. She was also an advisor to the ANC on land claims legislation, and to the National Manpower Commission on gender equality law.
Appointment to the Constitutional Court
In 1994, O’Regan was appointed as a judge to the newly formed Constitutional Court and served until October 2009. She acted as Deputy Chief Justice in the absence of Deputy Chief Justice from February to May 2008.
Well, it was really bizarre actually. I mean, quite a few people approached me to ask me if I would be willing to be nominated … And then initially when people approached me I said, ‘Don’t be ridiculous’. But then quite a few people came to me and said, ‘Well unless women make themselves available, we aren’t going to have any women.’ … So I did make myself available
Kate O’Regan
Justice of the first bench of the Constitutional Court
Judgments of Interest
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism (2004)
This case was about the allocation of fishing quotas in the deep-sea hake trawl sector of the fishing industry. Bato Star Fishing (Pty) Ltd, was dissatisfied with the allocation it received from the Ministry of Environmental Affairs and Tourism in the 2001 allocation process for the 2002 – 2005 fishing seasons. It applied for a quota of 12 000 tonnes in the deep-sea hake trawl sector, but it was allocated only 873 tonnes. It therefore sought to review that allocation decision. Deep-sea trawling for hake was pioneered in South Africa by a handful of companies who remain dominant in the sector. Like most of the South African economy, these pioneer companies historically were established, owned and managed by white people. Accordingly the Marine Living Resources Act identifies as one of its ten objectives the need “to restructure the fishing industry to address historical imbalances and to achieve equity within all branches of the fishing industry.”
Justice O’Regan had this to say on transformation:
The repetition of the requirement of the factor of transformation indicates its importance and the need for special attention to be given to the questions of restructuring and redress in the fishing industry. The historical imbalances which continue to disfigure the South African economy are felt acutely in the fishing industry…. There can be no doubt that the development objectives of the national government include transformation of the economy. On an overall reading of the provisions of the Act, decision-makers, in allocating fishing rights, must seek to give effect to the objectives of the Act and, in particular, must ensure that a process of transformation takes place.
Kate O’Regan
the Bato Star judgment, 12 March 2004
S v Jordan and Others (2002): (Minority Judgment)
This was a matter concerning the constitutionality of section 20 of the Sexual Offences Act which states that sex work is a crime. The Constitutional Court did not find the provisions of the Sexual Offences Act unconstitutional. Justices O’Regan and Sachs dissented. In their judgment, they found the opposite and said that the Act directly discriminates on the basis of gender.
It is noteworthy that the section does not penalise the person who gives the reward in return for the sexual intercourse. In short, the prohibition is directed only at prostitutes and not their customers. This feature of the section reflects a form of discrimination against prostitutes. The discrimination lies in the fact that the customer’s role in the act is not penalised while that of the prostitute is.
Justices Kate O’Regan and Albie Sachs
the Jordan judgment, 9 October 2002
Life after the Constitutional Court
From 2008 to 2012 she was appointed by the Secretary-General of the United Nations (UN) as Chairperson of the newly established Internal Justice Council of the UN. She served as an ad hoc judge of the Supreme Court of Namibia from 2010 to 2016 and as Chairperson of the Khayelitsha Commission of Inquiry into allegations of police inefficiency from 2012 to 2014.
O’Regan has been closely involved with the development of South African Legal Information Institute (SAFLII), the online database of South African judgments. She was also a founding member of the Board of Corruption Watch.
Today, O’Regan is the Director of the Bonavero Institute of Human Rights at the University of Oxford and is the Chairperson of the board of the Equal Education Law Centre.
Family and Personal Life
O’Regan is married to advocate Alec Freund SC and they have two children, who are now adults.
In the words of others
I want to spend a chapter on Kate OʼRegan, who is the most outstanding success of the Constitutional Court. She came here as a very bright young academic and I think she can hold her own on any supreme court in the world today. She’s a person of such substance in terms of legal knowledge, in terms of judicial ability, in terms of courage, clarity of vision, precision of expression.
Johann Kriegler
former Justice of the Constitutional Court
Judge O’Regan was my first ever boss when I left varsity. She taught me, more than anything, that it is possible to lead with warmth and kindness. She has been my example for leadership ever since and I strive to emanate the kindness and patience she showed me at the start of my career.
Kgomotso Mokoena
former law clerk to Justice O'Regan
Justice Kate O’Regan was both entirely independent and capable of operating without clerks, but also a very good trainer and always careful to include us in every matter. So, this meant that we had to move very quickly otherwise we’d get left behind by her. She could produce a draft judgment in a day.
Jason Brickhill
former law clerk to Justice O’Regan
