Kate O’Regan | Servant Leader

2012-2014 Chair of Khayelitsha Commission of Inquiry into allegations of police inefficiency and a breakdown in trust between the police and the community of Khayelitsha.

Currently

Visiting Professor at University of Oxford and Honorary Professor at the UCT

Justice Kate O’Regan has had a distinguished legal and educational career within and outside the shores of South Africa.

She was born in England on the 17th of September 1957 and moved with her family to Cape Town, South Africa in 1964. Her mother and father were medical professionals who used the skills of their profession to impact their local communities. Kate once recalled a period in the autumn of 1977, when hundreds of thousands of inhabitants were forcibly removed from the Cape Flats and other areas. Her father hired a truck and assembled the family to render assistance to the people. These acts and qualities that she observed from her parents, were not lost on her. During her schooling years, she started engaging in social justice activities. Initially wanting to be a journalist, she was made to understand that in order to adequately tackle the apartheid state, she needed to be well versed with the law and so she went on to study law.

She graduated in 1980 with an LL.B. (cum laude) from the University of Cape Town. She went on to acquire a Masters and then a PhD in law. After studies, Kate wasted no time in putting the wealth of knowledge gathered, into representing orgnisations, people, and groups against the harsh laws of the apartheid state. Working in labour law and land rights, she represented organisations like the Congress of South African Trade Unions (COSATU) and the Black Sash movement.

In 1993, with little hope that she was going to get in, she submitted her name for consideration as a judge to the newly formed, post-apartheid Constitutional Court. She was motivated by a lack of representation of women, in the higher echelons of the judiciary. On the 12th of October 1994, while on research at the University of Toronto in Canada, she got word that she had been appointed by Nelson Mandela as one of the judges of the constitutional court, one of only two women in the court’s 13-year history. Understanding the gravity of the task at hand, she and her colleagues got to work crafting a new legal/constitutional framework that would anchor the new democratic, free, and just South Africa. Throughout her tenure, she made and continues to make, significant contributions to the rule of law, passing judgments on key matters involving the state and its citizens.

Kate leader

The leader

We bear responsibility to make it a better place

Key Quality of a Servant Leader

Justice Kate O’Regan

South African

Public Servant

1994-2009 Appointed as a judge to the newly formed Constitutional Court

2011 President of the International Monetary Fund Administrative Tribunal

2008-2012 Chair of the United Nations Internal Justice Council

2012 Member of the World Bank Sanctions Board

2020 Appointed COVID-19 Designate Judge

Awards for her roles as Public Servant

1997 Honorary consulting editor of the South African Law Reports

2000 Honorary doctorate by the University of KwaZulu-Natal

2004 Honorary doctorate by the University of Cape Town

2007 Honorary bencher of Lincoln’s Inn

2008 Honorary doctorates by the London School of Economics and Political Science

The interview

Kate interview

Things You May Not Know About Kate

These are drawn from the full interview, which for Daniel was from "OneComradeToAnother'. Watch the full interview, here.

1970s

At first, she wanted to be a journalist

"... It was sort of an accident because I actually wanted to be a journalist, and that was in the early, mid 1970s. And when I went to see people who were journalists they said: “Look, we’re dealing with the apartheid state all the time. You need to know a lot about law if you’re going to be a journalist, so go and study law.” So I thought okay, I did an internship at the Cape Argus actually at the end of 1976. So those were hectic days, and I had already done a year’s study at university, and that’s when I switched to law. And then of course I got into law school always planning to be a journalist, but actually I got rather derailed and ended up being a lawyer..."

1994

The symbol in a color

"... It was an extraordinary day. I think we first met, we had a week of meetings in October 1994, shortly after we were appointed. I think it was the last week of October and you know, we had to deal with all sorts of things. We had to decide whether we were going to wear robes... how we were going to be addressed. The theme that ran through that week was - this is a transformational constitution - which means that we only take from the past what is defendable and what is good and we abandon other things, and in all of the symbols in what we do, whether it’s our robes, how we address one another, how the court functions, we’ve got to represent that so that’s how we ended up with the green robes rather than the robes that people ordinarily wear - the black and red robes. They were an extraordinary group of people all of whom, who had, been committed to ending apartheid. So I think that that was very helpful and also very committed to the idea that there were 11 of us because we were diverse and therefore it was important that we didn’t try and squash that, that we try to let that different voices speak, had to accept that at times we would disagree and that that’s okay and that’s what happens in a diverse nation..."

1980s

Legal era of male domination

"... when I went to law school there probably hadn’t been a South African woman judge. The first South African woman judge I think was appointed in the early 80s. So there hadn’t been, the history of law in South Africa had very much been a white male history obviously, with some marked exceptions in terms of race, Nelson Mandela, Oliver Tambo etc. By and large that had been, it had been a very male history and there were very few women, and that was very obvious. I actually came to less of a professional perspective than from looking at the intersection between law in gender. So looking for example at the structure of family law, at that stage we still had systems of community of property, in which women, whether they were married according to customary law, or married according to common law, would in most instances not have the power to contract once they were married. So we treated women uniformly. Albie Sachs often said that one thing that united South Africa was patriarchy so that was very obvious. And my first experience really doing legal work, was in law clinics, largely on the Cape Flats, and how many of our clients were women and issues of violence against women in the household, no maintenance and of course housing when allocated was allocated to men and so if there were a breakdown in the marriage, the women would end up homeless and having to go back to their family home or find somewhere else to go. So it was very obvious to me that even within the apartheid structure women were on the receiving end of a lot of injustice..."

Please note this is a word-for-word transcript from Daniel and Kate's conversation.

1970s

She was motivated by the injustice of apartheid

"... If you study law you’re concerned about justice, it was just such an obvious injustice. And I think we were all looking for ways in which firstly one could, where possible, provide protection for people who were being harassed, and victims of apartheid laws. By the time I got into practice, it was the early 1980s, with the emergence of the union movement. I was very fortunate, in relation to my work for unions in labour law, to be working with, to be in a law firm, where one of the leading union lawyers, at the time, happened just to move back and he was looking for an articled clerk, and I was delighted to be the articled clerk. So I got wonderful training and mentorship from him and then I also wanted to work for the Industrial Aids Society. I wanted to work in areas which would be, you know, which would try and make a difference to people’s lives, although that’s always an ambition one cannot always achieve..."

1994

The selection process

"... In South Africa, we have a strong view that judges should not be elected, they are appointed and they are appointed after an open process. Nominations are called for by the Judicial Service Commission which is a body made up of some parliamentarians, some nominees or appointments by the President, people from the legal process including practitioners and academics and judges and chaired by the Chief Justice and the Minister of Justice is also part of the Judicial Service Commission. So a 23 member body, they have interviews and then they forward names to the President who appoints the judges so this is a very open process. But it is not a popularity contest and it should not be a popularity contest. The Constitution makes clear that judges should be appointed who are appropriate for the appointment which means that they need to be independent and impartial people. They need to be suitably competent and equipped with the experience for the task and the third key requirement that the constitution asks that we try to make the judiciary represented broadly of South Africa’s demographics on race and gender. So those are the considerations that go into it, and popularity is not one of them..."

since 1994

Holding the ring of politics

"... The other area where law and politics are being engaged at the moment is in relation to the way in which Parliament and the executive do their work. Of course, Parliament and the Executive are just like the courts bound by the Constitution and the role of the courts there is really to ensure that Parliament and the Executive do act consistently with the constitution but not to second guess them beyond that. Some people use the metaphor of holding the ring, you know like a boxing ring and here are the ropes and in a sense, the constitution and the court make sure that the ropes don’t fall down and that the participants don’t get outside of the terrain or whether you’re a touch referee in rugby or in football. So it’s that idea of holding the ring of politics but not entering onto the playing field of politics..."

since 2000

Accelerating the processes of justice

"... Take for example with regards to social grants which is a big area of administrative cases. A person applies for a disability grant or a child support grant or whatever and doesn’t get it and generally we could create processes which would be quicker. I do think all courts are a bit slow and I think that’s a problem and I think it’s one of the things Chief Justice Mogoeng is most concerned about... looking at ways to accelerate the process of justice. On the other hand, another area where these delays can happen, is where tenders for example are challenged so you might have to wind your way up from the High Court of Bloemfontein, and even to Braamfontein to the Constitutional Court and this could take three years and the tender could be for something that is urgently needed so I do think we need to think a little more creatively about expedited appeals in these kinds of areas and how to make things a bit faster similarly with criminal justice you know criminal justice where people are prosecuted for crimes we do have delays so these are things that people do need to be thinking about and a related problem is access to lawyers, you know, a legal system is damaged if ordinary people can’t afford a lawyer..."

1994s

She got the news on her husband's birthday

"... So I can tell you when it happened because it was my husband’s birthday, which is the 12th of October 1994. I happened to be not here. I was in Canada and I was giving, I was on a research and sort of lecture tour there. So I was called when I was at the University of Toronto and told. I was quite taken aback because I must say when people asked me to put my name up, and you know it seemed to be a silly thing to do. I was only 30, in fact only 36 when I put my name up. I had small children, the idea was it was important to have women’s names on the list you know, same story today, important that women’s names are on the list. And having been quite a firm proponent of feminism and the importance of feminist issues in law, I thought maybe I should do it. But I have to be honest, I didn’t think there was much chance at all, or any chance at all, of my actually being appointed. So it was a shock actually. And you know, I did worry as to how we were going to manage it as a family. So initially what happened was I got a message. Somebody came to me and said there had been a phone call from South Africa: “You’ve been appointed to the court, you need to phone back urgently.” I then called my husband, it was the middle of the night in Canada, early in the morning here and then very soon after that I spoke to Arthur Chaskalson, who of course was the president of the court..."

since 1994

Her position on the Judiciary and the media

"... context is very important, so we need to be in and of our societies. This idea that some of our judges float somewhere else is not a good one. We do need to understand them and we also need to recognise that the media is crucial in a modern democracy so the role of the media is very important. But judges need to be able to make their decisions without attention to extraneous noises. There are going to be times when judges make decisions that most people are unhappy with or some people are unhappy with. That's the job, that’s why we don’t have to stand for election. We have to do what we think is right and it is important that the media cover what the courts do but it can’t influence judges in the way in which they handle cases..."

1994

Not a personality cult

"... I mean, I again think that people do use these labels sort of activists and interventionists and so on. I think a court should do what is necessary to uphold the law, I used to say that in 95 I was the quickest convert to a non-interventionist judiciary, only because it’s so difficult to be sure what’s right and what’s wrong. But I do believe that courts must uphold the law and that they must remember that that’s their task and it is not a cult of personality and it’s not a popularity contest and sometimes people will like it and sometimes people won’t and sometimes some people will like it and other people won’t, and that’s fine. We need to be respectful of that, and as modest as we can be without giving up what we have to do, which is read it with a serious mindedness, decide what we think the law is and uphold it..."

to date

Her principles/ideals

"... Democracies are noisy places you know, it’s authoritarian societies where people are silenced and where speech is silenced democracies are noisy and they are by definition, places of disagreement that’s why we have elections so that people can formulate their disagreements and deal with them. So, one has to be acknowledging that they are always going to feel noisy and sometimes unstable but that should not deter us that this is in fact not a good way for societies to work because if you don’t operate like that you tend to suppress conflict. All societies have conflicts in them, we all have disagreements so that’s the first, democracies are noisy and democracies can always be destabilised but it up to us as citizens not to panic at the first sign of a bit of contestation you know, that’s the job and then I also believe and that’s partly one of the reasons why I’m a lawyer, is that I believe it is important to listen to other people, to try and be respectful of other people’s differences of opinion about it, to be willing to change your mind and to let other people speak and I think that for human beings are often quite hard we only want to hear what we agree with and we want to silence people we disagree with and a democracy should never permit that to happen and that means that we will hear those disagreements but in the process of doing that we should try and listen to one another and behave with respecting every human being equally..."

Full Interview

Kate Full Interview

The lesson

Kate lesson

Servant Leaders must bear responsibility to make it a better

"... We do actually talk quite a lot in the constitutional jurisprudence about responsibilities, but I think it is something that we need to say as members of South African society we bear a responsibility in every single thing we do to make it a better place. and to think about it and not be defensive and to be imaginative about how we can make it better. I think we have been left with a pretty tough legacy, you know. . Colonialism, apartheid, these this was a tough legacy to deal with we had to deal with HIV. So we haven’t had an easy, it has not been an easy set of problems to deal with and we need to continue grappling with them and not get tired, and not get cynical. That’s one of the things I often say to young people, don't get cynical because cynicism is one of the roots to not doing anything..."

Daniel in conversation with

Justice Kate O’Regan

IN EVERYTHING WE DO

AS LEADERS AND MEMBERS OF THE SOUTH AFRICAN SOCIETY

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