Judicial Service Commission Interview with Prof. Catherine O'Regan
Associate Professor
Department of Criminal / Procedural Law
University of Cape Town
Monday, 3 October 1994
Judge Corbett: Prof O'Regan, I wonder whether I could get a little more clarity on your sort of sequence of employment and professional activities with particular references under which categories of qualification you fall in terms of the Constitution. Could you just give us quickly the sequence as from the time you finished with your academic training?
Prof. O'Regan: Certainly. I graduated at UCT in 1980 and then in 1981 I completed a Master's Degree, so that does fit in with either of the categories. I then did articles at Bowman-Gilfillen in Johannesburg which was for the period 1982/1983. In 1984 I was taken on as a professional assistant by Bowman-Gilfillen where I practised for 1984 and 1985. At the end of 1985 I went to London to register for a doctorate which I did full-time until mid1988. When I came back in 1988 I was employed by the Labour Law Unit at the University of Cape Town as a senior
researcher during which time I did undertake university teaching activities as well, particularly in law relating to gender and to Labour Law. In 1990, I think at the beginning of 1990 I was taken on as a senior lecturer at UCT and I think it is 1992, I have not got my CV in front of me but I think in 1992 I was promoted to, perhaps it was 1993, no, 1992 I think, promoted to associate professor at UCT. I do think, I obviously do not need to give advice to this meeting on my status under the provisions for membership of the Constitutional Court but I do think that I probably fall short of the ten years because I had really only two years as an admitted attorney and six years as a university lecturer. During that time I did some legal practice but relatively little. I was technically a professional assistant to Cheadle Thompson but I think it would inappropriate to duplicate that time. So I think I would have to fall in the secondary category on my reading of the Constitution anyway.
Judge Corbett: Is that what they call the C2?
Prof. O'Regan: Correct.
Judge Corbett: I was going to ask you, you just touched
upon it, what sort of work you did when you were a PA. Could you elaborate a little bit on what you already said?
Prof. O'Regan: Yes, certainly. In fact my areas of academic interests arises quite largely out of my areas of legal practice. I was particularly involved in Labour Law. You will recall that that was the time that the Labour Relations Act had been amended to permit unfair labour practices to be brought to the Industrial Court in terms of Section 43 and I was involved in a large number of cases on behalf, largely, of trade unions for bringing cases before the Industrial Court in terms of Section 43. In addition to the labour work I did I did a fairly considerable amount of work for communities that were either under threat of forced removal or facing eviction both in the rural and urban areas. In addition to that I did a fairly general spread of Supreme Court/ Magistrate's Court litigation.
Judge Corbett: Has Constitutional Law and related matters been part of your field of expertise?
Prof. O'Regan: I think my involvement in Constitutional Law in fact comes more through a notion of rights rather than from
Constitutional Law in the sense of the structures of government even though I have always had an interest in that for a long time. But my own involvement in the debates around the Bill of Rights and the negotiation of the current Constitution really arose out of those interests in relation to Labour Law, Property Law and gender discrimination which is an area I have done a lot of work in in the last six years. Inevitably in all those areas one encountered the notion of constitutional democracy and the implications of constitutional democracy for those areas. So as I say my introduction into thinking and researching and writing about those issues was very much from the implications of the areas in which I had practised and have done research.
Judge Corbett: I hope you do not mind my asking you this question but it has been asked of at last one other candidate, and that is it concentrates on your relative youth. I think you are now 37 if I am ...?
Prof. O'Regan: That is correct, yes.
Judge Corbett: The Constitutional Court or rather Members of the Constitutional Court under the present dispensation are appointed for a non-renewable period of
seven years. So if you were to become a member of the Court at the relatively, or what I regard as the tender age of 44, you would be out of a job. How do you see that?
Prof. O'Regan: Well, I might say first that it is a very refreshing experience for me as a woman of 37 to be considered nationally so young. I had a general sense of approaching middle age but quite clearly this has rejuvenated me in some sense. But in relation to the point about when I get to being, you know at the end of a period on the Constitutional Court, I mean I have no doubt that both my academic interest and I enjoy my job at the university and so on, would not be closed to me. I obviously would have to make application to relevant universities and so on but I do not think I would be excluded from continuing a career in academic life, and indeed I am sure that such ...(inaudible) would have been enriched by an experience on the Constitutional Court.
Judge Corbett: That would be your preference to go back to academic life?
Prof. O'Regan: Well, you know, these are very big ifs, of course. I certainly would not find
that an unpleasant prospect at all.
Chaskalson J: If the new Constitution were to say that Judges would sit until 70, how would the prospects of 33 years on the Constitutional Court ...(intervenes).
Prof. O'Regan: Constitutional Court, yes, well, I should imagine it is not so much my prospect as the nation's prospect of having me on the Constitutional Court for 33 years. That might be the real concern. My own sense is that, it is also once again, it is a very difficult question to answer because it is obviously such a big assumption, and personally actually I am very impressed, and think it is a very good idea to have limited periods of time on the Constitutional Court. So I had not really considered that seriously, and in a sense I hope the new constitutional drafters will not consider that seriously but it does not make me want to pick up my bag and leave right now, the prospect.
Chaskalson J: Can I leave the question of age and go to something quite different? You were one of the co-authors of a publication dealing with a Bill of Rights for South Africa before the Constitution was adopted. How did it come about that you
became interested in that topic and why did you want to write or join others in writing on that subject?
Prof. O'Regan: I think that we realised that the negotiation and adoption of the Bill of Rights was an absolute crucial turning point in South African legal history. Whether you approached it from the area of Labour Law, whether you approached it from the area of gender discrimination, from criminal justice as well as from a more democratic political theory approach, the content and aims of a Bill of Rights were absolutely crucial it seemed to us. We felt that it was an important debate that needed to be entered into with vigour and energy and which needed to be spread through the country as much as possible. We had had a range of discussions within the Western Cape particularly, there were a range of people from the Western Cape who were involved in the initiative, and even though in fact only 7 or 8 authors were originally named on the document, it had involved meetings and discussions with a very wide group of people. The idea was particularly that, was to start to get people think about what the implications of the Bill of Rights were.
Also to make some suggestions about issues that seemed to us to be crucial to balancing or to identifying the relationship between the judiciary and the legislature in the context of a constitutional democracy. It was very much an attempt at, as it said I think, it was meant to be a contribution to the debate.
Chaskalson J: There are a number of things arising out of that answer which I would like at some stage to discuss with you but you talked about the relationship between the legislature and the judiciary. Would you like to amplify that a little bit more?
Prof. O'Regan: Yes. I think, you know, the great debate or the great difficulty that we face with having embarked upon a constitutional democracy is that we have now given to the Court an immense power at a moment in our history when we have just achieved a democratic legislature for the first time and therefore have given power to the people. That is a riddle and a conundrum which needs thought and elaboration. At the end of the day it is one which I think is a good idea but I think that it does not, in terms of the generally perceived view
of democracy, seemed to be the obvious one. I think it has been referred to by some journalists at least as creating a jurisdocracy while democracy ... It was an eye to contemplating and advocating a particular view of that relationship that we embarked upon this Charter of Social Justice, and I think that was one of the reasons that really did inform that initiative.
Chaskalson J: And as far as that balance is concerned, how do you see it and how do you find a way through the dilemma that you have mentioned?
Prof. O'Regan: Yes. I think that the function of judges in this context, which I think is the question that you are asking, is to try and seek to find the values that underlie the Constitution and to ensure that they structurally are committed or become part of the process and become an institution which ensures that the values and purposes which underlie the Constitution are brought to fruition rather than a body which should be seen immediately as in conflict directly with the legislature.
Chaskalson J: If I could take that just one stage further, I think in that publication you referred to the Canadian jurisprudence
and to the case of Oaks test in Oaks which suggests that where there is a limitation on power or where there is a limitation clause, it should be limit as narrowly as possible, the right which is thought to be limited.
Prof. O'Regan: Correct.
Chaskalson J: That was, as I understood it, the gist of the Oaks' case. There has been a criticism of that that it comes down against democracy and leaves too much to the subjective approach of the judges to what is reasonable as a form of limitation. Without wanting to get into what our Court may or should do in their own clause, our own its language, could you address that particular criticism and that dilemma?
Prof. O'Regan: Yes. I think it is a real dilemma, and I think it is a difficult one to resolve at a general level which of course is really been what is happening in the post-Oaks' jurisprudence in Canada is that, but my own sense is that the, to me in some sense is the heart of that Oaks' test are the recognition that you want to have the least possible impairment which arises out of political theory really about the notion that at the end of the day, unless you recognise
somehow the, you seek to impair lease rights, you are likely to impair dramatically. You have to focus on the nature of the impairment of the right which is to me the heart of the Oaks'test. That very test has been relaxed in some of the subsequent Canadian jurisprudence to say they are not going to consider whether this is indeed the least possible impairment. To my point of view that in many cases that is unfortunate. I think that it is unfortunate because the very exercise of looking at the least possible impairment creates a range of possibilities for legislators which I think legislators ought to address. To me, I think you are talking about, to some extent, the backing away from Oaks and the Canadian jurisprudence into the extent that surrounds that particular the second leg of the proportionality test in Oaks. I think it is unfortunate.
Mr. van Zyl: Prof O'Regan, have you been involved in arbitration yourself in labour matters and more particularly in mediation?
Prof. O'Regan: I have been involved in mediation. I was the editor of the Arbitration Digest for a long period, and I did not think it was appropriate at the time to be an
arbitrator as well. It seemed it was too many things, too much to do, and I had been very aware of the arbitration jurisprudence as a result of that. I have also been a mediator. I have had less time the last year or so to mediate but I have mediated in labour disputes, yes, having been a mediator since 1988.
Mr. van Zyl: Successfully, may I ask?
Prof. O'Regan: Yes, I have a fairly good rate of success. I cannot say that that sets me apart. The intermediate actions generally have a fairly good rate of success and I think mine is about on average, about half/half.
Senator Ngcuka: I want to start off with the question that was raised initially about your relative young age. I take it that the fact that you are young is a positive aspect. Is it correct that you come through that age group which finally won the liberation in this country and therefore that you be able to understand the aspirations and the problems of the youth? The youth that we are dealing with in this country sometimes characterises the lost generation which has lots of problems. So your relative youth comes in, will be quite handy in that you will be able to understand
their problems. Is that correct?
Prof. O'Regan: Well, I have to say that you only have to look at me to realise that I am probably fairly far removed from being a member of the community who constitutes the lost youth. I think in fact in relation to the issue of age we have to consider why do we think that somebody should be a particular age? I think we have to unpack our notion of age, and I think that probably it actually is a notion of experience that we are talking about and maturity. I think those are the two issues that are wound together in this notion of age, and, you know, I think that from that point of view you have to assess them. You know what my experience is, you have to assess that experience and I think maturity is something that certainly, you know, that I think is an important issue, that the people are, by that I mean the people are able to have their own views and hold their own views in ways and be able to also listen to other people's views and take those on board, and those notions of maturity I think are what is there in the issue of age.
Senator Ngcuka: Can I move onto another subject? I would like to clear up one thing. Do
you belong to the Society for the Abolition of the Death Penalty? You do not?
Prof. O'Regan: No, I do not. Not that it differs me from its position but I do not belong to it.
Judge Corbett: Sorry, are you finished?
Senator Ngcuka: I was going to go to something else.
Judge Howard: I think you wanted to follow up a particular point.
Judge Howard: Apropos this question of youth, professor, I am concerned not so much with your age but the age of your children. You live in Cape Town, do you not?
Prof. O'Regan: I do, yes.
Judge Howard: And you have small children?
Prof. O'Regan: I do, I have two small children, one who is five and one who is three.
Judge Howard: How are you going to manage it with the Court sitting here in Johannesburg?
Prof. O'Regan: 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.
Judge Howard: Oh, you would move to Johannesburg?
Prof. O'Regan: Yes, certainly. He would accept that ...(intervenes).
Judge Howard: That answers my question.
Adv. Bizos: On the question of age, you know a Judge of the Natal Provincial Division, Judge Howie, when an objection was made in a particular case, he said I have been doing it this way for 26 years, it enabled us to successfully submit to the Appellate Division that he has been doing the wrong thing for 26 years.
Prof. O'Regan: Yes, well, point taken.
Senator Ngcuka: I still have one question. Professor, there is a question which is bothering me a little bit in my mind whether you will be able to divorce yourself once you are appointed to the Court from your second love, the work that you have been doing on forced removals. You also have been advising, I believe, the Ministry on Land Restitution. Given the right to property, which is entrenched in the Constitution and the potential for a conflict that does exist, do you think that you would be able to objectively judge cases of that nature which will be brought before the Court?
Prof. O'Regan: Yes, I mean I think the notion of objectivity is a difficult one but I do believe fundamentally in the value of debate and argument, and I think that is
something that is what adjudication is committed to. To that point of view I think that it is very important to remain completely open to the possibilities and arguments people will give. On the other hand of course the commitment and involvement I have had around the issues relating to land restitution are ones that are values completely entrenched and enshrined within the Constitution, and I think that, as I say the advice and legislation has been drafted around that have been very much to give effect to the language of the Constitution, and I think that is very important. But nevertheless, as I say, at the end of the day I think the purpose is to be able to listen to what the arguments are, and I do not think any of us have any sense of what, of the range and depth and scope of arguments that will be produced in terms of the Constitution we have had, and it would be impossible to prejudge one's responses to those but all one could say is that one would definitely be aware that one should hear them and that one should deal with them as they are made.
Prof. Mureinik: Prof O'Regan, could we shift to a very
important and unusual function of the Constitutional Court? One responsibility which the Constitutional Court will have will be to certify the final Constitution to be in compliance with the constitutional principles laid down in the Fourth Schedule of the Constitution. In other words the Constitutional Court will have to review the final Constitution as though it were a statute under, itself under a very complex and rich Bill of Rights, namely the constitutional principles. It is like having a super Bill of Rights and deciding whether the final Constitution matches up to it. On the face of it there are 34 principles or there were, when I last counted them.
Prof. O' Regan: 34.
Prof. Mureinik: Some of them are very specific. It is very easy to envisage a conflict between one of those principles and the final Constitution, and so on the face of it it would seem to be very easy for the Court to strike down the final Constitution as a legal matter. On the other hand this process will not, in the ordinary course, start unless the final Constitution has acquired the necessary support in the Constitutional Assembly,
two-thirds majority in the Constitutional Assembly, two-thirds majority in the Senate on matters affecting provincial powers, boundaries and function. So it will come to the Court, your court, with a lot of political backing, and that makes it seem almost impossible to strike it down. I know you cannot answer specific questions but in general how bad will the final Constitution have to be in order to be struck down?
Prof. O'Regan: I think it is a difficult question, it is a very difficult function the Court is going to have to deal with. I think that there are, once again, running through those 34 principles, some of them are, as you say, quite detailed but a lot of the others are about a statement of fundamental values. In some senses in fact it is probably the best place to find some of the statements of fundamental values in the Constitution. I think that the function for the Court is very much an overall function of viewing the new Constitution rather than a sort of a very technical detailed provision, and the sense will be to look at the sense in which the new Constitution meets that, except perhaps,
and it may well be that you, it is not something I have really spent a lot, I have to spend lot more time thinking about it. My sense is that the more specific provisions may require more, a different standard or a different approach in a sense to the more generalised provisions but at the end of the day the aim that you have to try and see is that the Constitution fits in with the overall framework that is provided, the running theme, as it were, of the 34 principles.
Prof. Mureinik: Will the Constitutional Court not find itself in essence in the same position as the IEC did in the April election? On the face of it there was a detailed Electoral Act, there were a whole lot of acts, a whole lot of requirements to be complied with. We know that many of them were ignored, there were serious irregularities but at the end of the day the IEC was forced just to avoid a cataclysm to certificate the elections substantially free and fair, and I think most South Africans probably think that it did the right thing. It did not really have real choice at the end of the day about upholding the election. Will the Constitutional Court have a
real choice about upholding the final Constitution once it has obtained the two-thirds majorities that are necessary?
Prof. O'Regan: One thing that comes to mind of course is the time constraints which the IEC were under will not be quite the same time constraints in relation to the new Constitution. I think one of the ideas was to have a fairly short period of time for the Constitution to be negotiated and quite a long period of time left before the next election and the next process. So the time constraints might not be as severe as all that. On the other hand once again I think the Constitutional Court will have to, and it is difficult to predict, and we are talking about, you know, future events, will nevertheless have to take this job very seriously. It has been part of the process of the interim Constitution, political parties have committed themselves to that process. In a sort of a way probably the main effect of the Constitutional Court's power is to constrain the process of current negotiation in relation to what is reached. To some extent that is how constitutional courts' power work
entirely. They have got to be seen within an overall view of the exercise of power and the very fact that the Court is there is an constraining factor. I think that is another thing the Court would have to take into account in determining whether a particular provision breached one of the general provisions or not.
Prof. Mureinik: If I could shift focus a little, prof O'Regan. You have done, in developing the Social Charter that your group published and elsewhere, a lot of comparative work on constitutions. Looking at the Constitution as a whole, is this Constitution better or worse than most other constitutions in democratic countries? How does it rate and why?
Prof. O'Regan: If you grade it A, B, C or F? You are talking about the Constitution as a whole?
Prof. Mureinik: Ja, what are its ...
Prof. O'Regan: As opposed to chapter 3?
Prof. Mureinik: How do we rank in the international constitutional community? Are we doing well or badly?
Prof. O'Regan: Well, I suppose the answer, that sort of a question, you know, you would say well, the context is all important and
of course it is at the end of the day. There is a probably little doubt that a lot of those other constitutions would have been acceptable to all the parties to whom our Constitution had to be acceptable. I still believe that we have been through, it is remarkable achievement. I think there are a lot of provisions in the Constitution which are very far-sighted. There are ones as well that, and particularly within in chapter 3 and elsewhere, which one feels are part of a compromise which is perhaps going to give rise to a lot of difficulty. One thinks for example of the issues relating to provincial powers. It is a problematic provision. It is problematic because it is politically problematic and we could not escape from that. But in fact if you look at most other federal systems they have exactly the same problems with exactly those issues because they are issues of real power, they often turn on comprises. Whether you are looking at Australia or Canada, the United States you find that they have difficulty at exactly the places we have difficulty for quite similar reasons. I think therefore it is quite difficult to grade
us and say wow, you know, we did very well. It really depends what criterion you are going to measure it by. The criterion, it seems to me to be the most important, is 1(a) that it is acceptable to the broad South African community and one which participates in a project of creating a unified and democratic South Africa which is acceptable to its people, and in that regard I think, you know, we can be relatively happy with the Constitution. As I say there are specific technical problems which we are going to encounter as we go along but generally I think it is quite, that is the criterion. You did not really suggest a criterion of merit but that seems to me to be an appropriate criterion of merit.
Prof. Mureinik: Just focusing on this Constitution, some people think that a constitution can be organised into a hierarchy of values, that certain constitutions rank certain values in a discernable hierarchy. Do you think that can be done to our Constitution and roughly what would it look like?
Prof. O'Regan: Well, I think that there are, yes, I think there are values within our Constitution. I think creating a
hierarchy out of them is difficult and quite often there are perceived tensions between them. So it is quite difficult to create a hierarchy out of them. I think, one talks about the specific values but I think that for example the criteria of an accountable and democratic government is very important, openness and accountability. A lot of the values in it arise out of our history which is an unaccountable and unopen and a non-democratic government as it were. So I think that is an important value. Another value which also arises out of our history is the value of equality and I think it is a key value. It is to be found again and again and recited through the Constitution, and I think that once again arises out of the desperate inequality of the past. I also think that there is running through the Constitution a commitment to peace and compromise which is particularly a political value which is, I think, reflects the political process. I think there are a range. I think putting them into a hierarchy is difficult, and I think in fact the constitutional drafters resisted doing that. I think
you tend to find, if you look at Section 33 for example, there is, you know, reference to freedom and equality and openness and democracy are all there because they are all seen as important values. There is a desire not to have to put them either into opposition or into hierarchy.
Prof. Mureinik: One last question, a specific one. You were questioned earlier on the seven year non-renewable term for a Constitutional Court Judge. Some people have criticised that on the basis that it might undermine the independence of the Judges of the Constitutional Court, the notion being that because it is only for seven years, one might be appointed well before a time and age, that some of the Judges will be looking over their shoulders during that seven year period at what their future careers are going to be. In your case it is not a problem obviously, you have indicated that you would go back to the university but in many cases it would be considered invidious for a practitioner for example to go back to practising before the Court of which he or she had been a judge. He might not want to, he might find it embarrassing to step down to a
lower court, a division of the Supreme Court having been on the highest court in the nation and so the logical aspiration of a Constitutional Court Judge might be to some sort of government service. So the judge might be thought to be looking over his or her shoulder at the prospect of government employment and that might compromise the judge's independence when cases involving the government, which will be the most important cases, come before the court. Do you think that is a problem?
Prof. O'Regan: Speaking from my experience in the Industrial Court I think there is a real problem about people who have been on a court appearing before the court, and perhaps the problem is one more of the perception of the other people who appear in that court than anything else but that does not make it less a real problem because it is very important for people to have a sense that they are involved in a fair and just process. I can see that in a sense the seven year non-renewable term would create that problem. On the other hand, you know, I think that the advantages that we have got from having a non-renewable and a
brief period, not brief but a relatively brief period of time on the court, are also great. It would seem that one should be able to deal with the problem of non-renewability and the problem of people appearing before the court or in relation to their careers afterwards in some way that would avoid that. My own sense is that people believe that they should be particularly friendly towards the government when sitting on the court in order to get a job. It is just not likely to be the kind of thinking and the calibre of people that, or the sort of people you would hope who would be involved on the Constitutional Court. I mean that is your job, not mine but I think that would be a worry. I certainly would not be entirely convinced that it would be a good reason for moving away from a non-renewable term.
Judge Corbett: There is another aspect of course to the seven year period, non-renewable period is that you will get a complete turnover after the first period of seven years has elapsed.
Prof. O'Regan: I do think that is a problem. I mean once again, my own sense is that you do not want to lose the continuity of the Court, so that ideally the period should
be broken in the middle and you would have an appointment of half the members of the Court as it were every three or every four years, something like that. I think it is a problem to have this complete loss of continuity on the Court. It could be done in a variety of ways, staggering the appointment process. I am sure that the members of the JSC would like to see the process staggered somewhat as well.
Mr. Mojapelo: Professor, are you or have you at any stage been an active member of any political party?
Prof. O'Regan: I am a member of the African National Congress. I am not a very active member, I have to say. I have a range of activities which keep me fully occupied elsewhere but I ...(intervenes).
Judge Corbett: Sorry, you dropped your voice, I did not ...?
Prof. O'Regan: I said I am very active in a lot of things but I am not actually active as a member of the ANC but I am member of the ANC, and I must say it is not on my CV. The simple reason for that is that when asked for my CV by a range of organisations I just printed it out and only subsequently thought it was
something I should have disclosed. I cannot remember exactly when I joined but it would have been about 1991. I am member of the Claremont branch in Cape Town but I have had no official, carried any, you know, I have not been an office-bearer or anything of that nature. Other than that I have never been a member of a political party, and no other direct political affiliations.
Mr. Mojapelo: If you were to be appointed to the Court, would you retain that membership?
Prof. O'Regan: No, I do not think I would. I do not believe that people cannot have, or that anybody can not have political views. I tend to think we all have political views but I do think that it would be probably inappropriate to remain a member of a political party upon appointment to the Court. But it did not seem to me to be appropriate either to resign my membership at this stage. I think it should only happen upon appointment.
Mr. Mojapelo: If I may just ask, you seemed to be a person who have had quite a bit to do in drafting constitutions, bills of rights and so on. Do you think that past active membership of a political party is a factor which should count either as
a plus or as minus for membership of the Constitutional Court?
Prof. O'Regan: No, I do not think that active political membership, as long as it is in the past in a sense, is necessarily, as I say, something that should exclude you from membership as a court. I think that what you do have to be able to be sure of as members of the JSC I think is that people will be able to hear arguments, that they will listen to arguments, I think the kind of thing that Senator Ngcuka raised earlier. I think that is the test and there are many people perhaps who have never been active in politics who would not be the sort of people who would listen to argument and people who have been involved in politics who would, so I think that is the test.
Adv. Trengove: Professor, the Constitution enjoins us in constitutional adjudication to look to foreign precedent and certainly there is a very rich source of precedence in other jurisdictions, Canadian, American and Indian but it does not seem to me, firstly, that the words of our Constitution is sometimes different but more importantly that South African conditions are sometimes very different
and require different solutions. It is going to be a great temptation though simply to take the foreign answer because there is a foreign answer to every question that might conceivably arise here, simply to take a foreign answer and to apply it. How do we avoid that temptation? What is different about our society and how do we find South African answers to our particular problems, particular constitutional problems in our context?
Prof. O'Regan: I agree with you that one does not want to have a sort of a knee jerk response to and automatically adopting the foreign jurisprudence. I think to me the value to be attained from the foreign jurisprudence though is a sense of exploring what the issues are. Very often, particularly comparatively looking from one system to another, begins to make one question what are the natural ways of doing things and so on. That has always got to be incorporated within our own jurisprudence of determining our own values in our own context. Now one would not want in any sense to abandon that as the primary constitutional endeavour. I do not think it would be appropriate to try in
any way to limit reference to foreign materials or to try and suggest that in some perhaps recreation of the 1950's and 1960's period that we were going to go it entirely alone from a point of view of legal development. But I think what we should do is have a very clear view of why we are referring to foreign jurisprudence and I think if we had that clearly in our heads, then it would be done in an appropriate way. As I say I think the idea is to, one learns enormously about the possible ways of resolving problems, what the political and theoretical issues and conceptual issues are underlying any particular issue from looking at the foreign jurisprudence.
Adv. Trengove: Let me make it quite clear, I am not suggesting for a moment that it is not a valuable source of guidance but have you considered in what ways our society perhaps differs from those and in what way one then finds the South African indigenous solution to our problems?
Prof. O'Regan: I think we are contextually a completely different society to any of the three that you mentioned, Canada, United States or India and any of the others that one might mention in relation to
constitutional jurisprudence. I think the variety of factors impact here, one is our history and the history of exclusion and denial of democratic rights and the implications that that history of exclusion had for our society are of a fundamentally different order to certainly the Canadian or the United States experience. I think also that the relatively, economically our society is a very different society to those two in terms of our status in the GNP ratios and so on. I mean I think that we have very different factors there. I also think that we are developing a particular view of the values that underlie a constitution which arise out of that history and arise out of a negotiated transition which would be ones that in a sense that one want to see being built on and developed within the jurisprudence but at any general level I think it is quite difficult to answer your question. But those are the kind of factors, a recognition of the very different socio-economic and political context should inform any approach to the foreign jurisprudence.
Adv. Trengove: Just one, a completely different matter, you described your practical experience
as a clerk and then as a professional assistant. I gather though that since then you have not been completely removed from practical law. Could you perhaps just tell us in what ways you have been involved in ...?
Prof. O' Regan: Yes, when I first came back to South Africa in 1988 I did quite a lot of consulting and some appearance indeed in the Industrial Court in labour related matters. I have on an ongoing basis sort of provided consultation and advice on those matters, I have not litigated for quite a few years. So that is in Labour Law. I have also been involved in a variety of matters around access to land and land restitution and also some issues relating to equality, gender equality and so on. Yes, on a sort of consultancy basis for firms of attorneys and some advocates.
Mr. Ernstzen: Prof O'Regan, just two questions. You know in all this and what permeates the scene one hears words of equality, fairness and the works, and yet one finds something peculiar and I would like to hear your views on this. Eleven Judges which sit and constitute the Constitutional Court, in terms of the powers vested in the President and the
Cabinet, the Judge-President or the President of the Court was appointed together with four others. How do you feel sitting here today being put through this? Do you think that is fair and equatable and equal?
Prof. O' Regan: Obviously one realises that it is also once again part of this process of principle compromise but ideally I think that the access to appointment to the Court or membership of the Court should be the same for all members of the Court in the future, in the post-transitional period. I think that in a sense some of the anxiety about, I think it is a real anxiety about access to the Court because of the real powers that the Court has, and some of the anxiety arises out of a confusion and the misunderstanding about how people get to the Court and why some people get one way and other people get another way. But on the other hand as I say I think it is a process of political compromise that governs the transition. I think I would be quite surprised if it would be to be a process that were continued in the final Constitution. I think it is very much located in that particular set of political circumstances.
Mr. Ernstzen: Just finally, someone once answered this question by saying that as a lawyer it sounded of sentimentality but I find a lot of validity to the question and that is that the society from which we come have divided us and compartmentalised us to such a large degree that it is very difficult for each of us to feel equal to the other because of that division. With the tasks entrusted on the Constitutional Court, how do you see one bridging that gap? There are provisions in the Court in an attempt to find that but just your own views of transforming those barriers even in the minds and the psychology of those who are going to have to pass judgments because of the complexity and diversity of the society which we are moving out of? Any thoughts from your own side?
Prof. O'Regan: I think it is a very difficult issue to, it is really an issue of once again being able to hear the nature of the cases that are before you, to be able to relate in a sense to what the real issues are, to be moved by the concerns and anxieties that have brought people before the Court in a sense. I think that that just requires a particular humanity of the members of the Court to
be able to do that, and to bear in mind all the time that people do not get to the Constitutional Court because they are feeling it does not really matter. In many, many cases there are real anxieties and concerns and very strongly held views that are behind those kind of applications. I think the members of the Court have got to be open to listen to those kind of things. But I do think we are to some extent a product of our own environment, and we have to be constantly aware of that, and seeking to be able to hear people of a different environment.
Prof. Mureinik: I would just like to clarify your answer to Mr Ernstzen's first question, the one about the anomaly in the selection process, some Judges go through the open process and some do not. You said that that would disappear in the final post-transitional phase or you hope that it would. Which part were you saying would disappear, this part of the other part?
Prof. O'Regan: As much as I would like this part to disappear, this is the part of course which I think is appropriate. It is not particularly pleasant for those involved in it but I think it is the obvious way in which Judges should be appointed, and
I think it is unnatural to all of us and we are uncomfortable with it but I think it is the obvious way the Judges should be appointed. My sense is that that is the kind of view that really does in fact underlie our Constitution, and one would hope that that would be the outcome.
Prof. Mureinik: Would you extend it, would you allow in television cameras and radio broadcasting equipment?
Prof. O'Regan: Yes. Perhaps it is also because I come from Cape Town and I do not know how many people in Cape Town said we have been discriminated against as usual by Johannesburg, we cannot come and listen. I think in the country in which we live it is too much to expect the printed media to be able to convey these issues, and I think I would not necessarily televise it. I think perhaps the radio might be the way to most people but I certainly think it is appropriate to have the process as open as possible to make people feel that they really are not being shut out.
Adv. Bizos: I do not think I should allow Prof O'Regan a perception to go out of the pessimistic scenario that was painted by Prof Mureinik of you having to certify
the Constitution as a package deal because I am sure you are aware that in terms of Section 98(9), if any anybody feels strongly about the unconstitutionality of any provision whilst it was being debated the Constitutional Court can come along and ask whether it would or would not be. So I do not think that if you are appointed you will have an awesome task to perform. It may be in instalments.
Prof. O'Regan: Yes, although at the end of the day the idea is that we do have to verify the whole Constitution if those things have not been raised along the way.
Adv. Bizos: But you may have expressed opinions along the way.
Prof. O'Regan: Along the way, clear enough.
Adv. Bizos: Most matters that come before constitutional courts throughout the world have their origin in the criminal courts. I think I want to put this questions to you because you are ...you give your address as the Department of Criminal and Procedural Law.
Prof. O'Regan: Yes.
Adv. Bizos: Have you looked at the Criminal Procedure Act without committing yourself to any particular issue? Can you tell us to what extent our Criminal
Procedure Act has to be amended, modified, reshaped having regard to the provisions of the Bill of Rights?
Prof. O'Regan: Yes, I mean I do think that there are provisions in the Criminal Procedure Act which have to be reconsidered. I do not know if you want me to specify in great detail but I do think that there are. I think that Section 25 of the Constitution which is the provisions which deal particularly with criminal justice and detainees' rights are very specific, and I think that there are provisions both in our Criminal Procedure and in our Law of Evidence which are going to be directly impacted upon by the operation of the Constitution. One would expect that in the light of that, you know, we would be likely to see some amendments to the Criminal Procedure Act, I think some of them are fairly straightforward, amendments to the Criminal Procedure Act. One understands from reading the press and so that there have been quite a few amendments in practice anyway already in the Magistrate's Courts in relation to both procedures and the evidence that they admit.
Adv. Bizos: As a member of the Constitutional Court,
if you are appointed, how would you answer an argument by the respondent in a case that this is really a matter for the legislature, let them go and change the law if the public will or the public representatives feel that there is something wrong with it, do not come to us with these problems? How would you react to that sort of argument?
Prof. O'Regan: In relation to a challenge to a particular aspect of a piece of legislation?
Adv. Bizos: Yes, or an attack on the present Criminal Procedure Act?
Prof. O'Regan: My sense is that the very purpose in enacting a Constitution as we have enacted and making it the supreme law is to in fact ensure that the legislature does address it and to make the guardians of that the courts. Therefore it would be quite inappropriate to accept an argument that you should leave it up to the legislature in the light of the fact that if there is clear breach, assuming here a clear breach of one of the provisions of the chapter 3, then the Court would have no choice but to, I mean I am once again assuming there is no limitations and so on to saying it is an appropriate ...(intervenes).
Adv. Bizos: In your reading of the 30 odd rights enshrined in chapter 3, do you feel that there are some there that cannot be abrogated by any sort of majority either in Parliament or in a referendum or any other matter?
Prof. O'Regan: Of course the structure of chapter 3 would suggest that that is not necessarily so. Section 33 clearly suggests that and does not exclude any rights from the possibility of limitation. You use the word abrogation, I am not quite sure if that, you are using that in order to suggest that it is something more than limitation.
Adv. Bizos: Yes, that you cannot limit the right in a manner which would abrogate it.
Prof. O'Regan: Yes.
Adv. Bizos: Now are there any such rights in the 32 rights enumerated in the chapter in your view?
Prof. O'Regan: In any circumstances whatsoever?
Adv. Bizos: Yes.
Prof. O'Regan: No, I think probably there, I could, perhaps some of the examples might be quite fanciful but one could imagine that there are provisions in chapter 3 which may be subject to limitations in certain circumstances. Once again I
have not got them all in my head, I am thinking about particular ones.
Adv. Bizos: Well, what about cruel and unusual punishment?
Prof. O'Regan: I think that, I mean it is asking me a very direct question and it is quite difficult to answer these out of context. I mean my strong sense is that I can think of very few examples where I would actually permit cruel and unusual, would think that cruel and unusual punishment could be moved from. But I would not want to say here and put my head on a block that there is never a circumstance where that is so. It is clearly a most important right. That is really all I would like to say about that.
Adv. Bizos: But what would be your attitude which is prevalent or which would gain (inaudible) in Zimbabwe for instance, that what is cruel and unusual is primarily for the legislature and not for the Court to decide?
Prof. O'Regan: Yes, well, I do not agree with that. I think at the end of the day the fairly clear in purpose of this Constitution is not and I would not accept that it was to be differential to the purposes of the legislature. I think that underlying
this Constitution is a clear value which values human life and the sanctity of, the importance of the body and not, you know, punishing people in cruel and unusual ways which relate to both their physical and their mental circumstances which seems to me to underline the Constitution. I think the Court is the person who would have to determine in any circumstance whether any particular form of punishment in what particular circumstances would be a breach of the Constitution but it would not be something that should be left for the legislature.
Judge Corbett: Thank you very much, Prof O'Regan.
The Constitutional Court has made reasonable effort to ensure this is a proper reflection of the candidate's interview with the Judicial Service Commission. However, the nature of the recording and transcription process means that accuracy cannot be guaranteed.
