Kate O'Regan

O'Regan was born in Liverpool, England, into a large Catholic family of Irish immigrants.{{cite web|url=http://www.historicalpapers.wits.ac.za/inventories/inv_pdft/AG3298/AG3298-1-140-text.pdf|title=LRC Oral History Project: Kate O'Regan|date=30 July 2008}} She moved to Cape Town when she was seven. Her mother was a dentist and her father was a doctor.

File:UCT Upper Campus landscape view.jpg, where O'Regan studied for five years, worked as a lecturer at the start of her career, and is now an honorary professor.]]

O'Regan studied at the University of Cape Town from 1975 to 1980, earning a BA and LLB. She was taught briefly by Arthur Chaskalson, who had recently founded the Legal Resources Centre, and ran UCT's legal aid project, working with Mahomed Navsa of the University of the Western Cape. After earning an LLM from the University of Sydney, she returned to South Africa and began her articles of clerkship at Bowman Gilfillan. She stayed on at Bowman for two years under John Brand, specialising in labour law and land rights and representing COSATU, NUM, NUMSA and the Black Sash.

In 1985, O'Regan went to London to do a PhD at the London School of Economics on interdicts restraining strikes. On her return to South Africa in 1988, she worked at the Labour Law Unit and then became an associate professor at the University of Cape Town. She was a founder member of the Law, Race and Gender Research project and the Institute for Development Law at UCT; advised the African National Congress (of which she was a non-active member from 1991)JSC interview: Catherine O'Regan (3 October 1994), [http://www.constitutionalcourt.org.za/site/judges/transcripts/catherineoregan.html concourt.org.za]. on land claims legislation, working with Geoff Budlender, Aninka Claassens and Derek Hanekom;{{cite web|url = http://www.historicalpapers.wits.ac.za/inventories/inv_pdfo/AG3368/AG3368-B11-001-jpeg.pdf|date = 6 January 2012|title = Constitutional Court Oral History Project: Geoff Budlender}} and served as a trustee of the Legal Resources Centre Trust. She co-edited No Place to Rest: Forced Removals and the Law in South Africa and contributed to A Charter for Social Justice: A Contribution to the South African Bill of Rights Debate.

In 1994, O'Regan was appointed to the newly formed Constitutional Court of South Africa by Nelson Mandela. Aged only 37, O'Regan's appointment was surprising even to her.{{cite web|url=http://mg.co.za/article/2009-08-04-book-of-sa-women-judges|title=Book of SA women judges|date=4 August 2009|publisher=Mail & Guardian}} She and Yvonne Mokgoro were the only female judges on the Court for its first 13 years.

O'Regan's first majority judgment was S v Bhulwana; S v Gwadiso, where the Court for the first time suspended an order of constitutional invalidity.S v Bhulwana, S v Gwadiso [http://www.saflii.org/za/cases/ZACC/1995/11.html (1995) ZACC 11]; 1996 (1) SA 388 (CC). In 1998, she co-authored Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council, the Court's founding judgment on the rule of law and legality review. The first major judgment of which she was the sole author was Premier, Mpumalanga,Premier, Province of Mpumalanga and Another v Executive Committee of the Association of Governing Bodies of State Aided Schools: Eastern Transvaal [http://www.saflii.org/za/cases/ZACC/1998/20.html (1998) ZACC 20]; 1999 (2) SA 91 (CC). still the leading authority on the doctrine of legitimate expectations (on which O'Regan also wrote in Ed-U-College, again in the context of the government's withdrawal of school subsidies).Permanent Secretary of the Department of Education of the Government of the Eastern Cape Province and Another v Ed-U-College (PE) (Section21) [http://www.saflii.org/za/cases/ZACC/2000/23.html (2000) ZACC 23]; 2001 (2) SA 1 (CC). O'Regan's judgment in Dawood v Minister of Home Affairs, delivered in 2000, established for the first time that the right to family life is constitutionally protected and that the conferral of broad discretionary powers on government officials can be unconstitutional.Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others [http://www.saflii.org/za/cases/ZACC/2000/8.html (2000) ZACC 8]; 2000 (3) SA 936 (CC). But by far her most-cited contribution to administrative law is her 2004 judgment in Bato Star v Minister of Environmental Affairs and Tourism, which sets out South African law's approach to reasonableness review and judicial deference.Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others [http://www.saflii.org/za/cases/ZACC/2004/15.html (2004) ZACC 15]; 2004 (4) SA 490 (CC).

File:ConstitutionalCourtofSouthAfrica-table-20070412.jpg]]

O'Regan's judgment in ACDP v Electoral Commission, dealing with the African Christian Democratic Party's application to contest the 2006 local government elections, introduced the doctrine of substantial compliance into South African law.African Christian Democratic Party v Electoral Commission and Others [http://www.saflii.org/za/cases/ZACC/2006/1.html (2006) ZACC 1]; 2006 (3) SA 305 (CC). Her judgment in Richter v Minister of Home Affairs, also on political rights, extended the right to vote to South African citizens living abroad.Richter v The Minister for Home Affairs and Others (with the Democratic Alliance and Others Intervening, and with Afriforum and Another as Amici Curiae) [http://www.saflii.org/za/cases/ZACC/2009/3.html (2009) ZACC 3]; 2009 (3) SA 615 (CC).

O'Regan wrote several judgments on labour law, in which she had specialised as an attorney and academic. She wrote two judgments—one in 1999 and one in 2007—in the ongoing litigation between the South African National Defence Union and the South African National Defence Force, as well as NUMSA v Bader Bop,National Union of Metal Workers of South Africa and Others v Bader Bop (Pty) Ltd and Another [http://www.saflii.org/za/cases/ZACC/2002/30.html (2002) ZACC 30]; 2003 (3) SA 513 (CC). a judgment dealing with the subject of her PhD thesis: the right to strike. Her 2001 judgment on the relationship between administrative law and labour law, Fredericks v MEC for Education and Training, Eastern Cape,Fredericks and Others v MEC for Education and Training, Eastern Cape and Others [http://www.saflii.org/za/cases/ZACC/2001/6.html (2001) ZACC 6]; 2002 (2) SA 693 (CC). has effectively been overturnedChirwa v Transnet Limited and Others [http://www.saflii.org/za/cases/ZACC/2007/23.html (2007) ZACC 23]; 2008 (4) SA 367 (CC).Gcaba v Minister for Safety and Security and Others [http://www.saflii.org/za/cases/ZACC/2009/26.html (2009) ZACC 26]; 2010 (1) SA 238 (CC).—to almost unanimous disapproval by commentators.{{cite web|url=http://constitutionallyspeaking.co.za/constitutional-court-tries-to-fix-its-own-balls-up/|title=Constitutional Court tries to fix its own balls up|first=Pierre|last=de Vos|publisher=Constitutionally Speaking|date=7 October 2009}}{{cite journal|first=Thembeka|last=Ngcukaitobi|title=Precedent, separation of powers and the Constitutional Court|journal=Reinventing Labour Law|date=2012}}{{cite book|first=Cora|last=Hoexter|title=Administrative Law in South Africa|publisher=Juta|date=2012}} In Sidumo v Rustenburg Platinum Mines Ltd, O'Regan wrote separately to emphasise, in agreement with the majority judgment of Navsa AJ, her law-clinic colleague of thirty years earlier, that administrative law applies to labour law disputes.Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [http://www.saflii.org/za/cases/ZACC/2007/22.html (2007) ZACC 22]; 2008 (2) SA 24 (CC).

In the law of delict, O'Regan's contribution has been significant. In 2002, she wrote Khumalo v Holomisa,Khumalo and Others v Holomisa [http://www.saflii.org/za/cases/ZACC/2002/12.html (2002) ZACC 12]; 2002 (5) SA 401 (CC). one of the Court's first judgments on defamation law and arguably its only judgment applying the Bill of Rights directly to private parties. In 2004, she delivered the Metrorail judgment,Rail Commuters Action Group v Transnet Ltd t/a Metrorail [http://www.saflii.org/za/cases/ZACC/2004/20.html (2004) ZACC 20]; 2005 (2) SA 359 (CC). which holds that Metrorail has a duty to ensure the safety of commuters on its trains and is regarded as an "exemplar" by international commentators for its protection of the right to personal security.{{cite book |chapter-url=https://books.google.com/books?id=H3Z6BAAAQBAJ&q=kate+o%27regan+legacy&pg=PT270 |title=Security and Human Rights|chapter=Mapping the Right to Security|editor1-first=Benjamin|editor1-last=Goold|editor2-first=Liora|editor2-last=Lazarus|first=Liora|last=Lazarus|publisher=Hart|date=2007|isbn=9781847317001}} And in 2005, most famously, O'Regan gave judgment in K v Minister of Safety and Security, finding the state liable to compensate a plaintiff who was raped by a police officer.K v Minister of Safety and Security [http://www.saflii.org/za/cases/ZACC/2005/8.html (2005) ZACC 8]; 2005 (6) SA 419 (CC). The judgment's radical expansion of the test for vicarious liability, following Bazley v Curry and Lister v Hesley Hall Ltd, was celebrated by women's rights groups{{cite web|publisher=Mail & Guardian|first=Hayley|last=Galgut|title=We must be able to trust our cops|url=http://mg.co.za/article/2005-06-17-we-must-be-able-to-trust-our-cops/|date=17 June 2005}}{{cite web|publisher=Mail & Guardian|first=Jenni|last=Evans|title=Rape by cops: State loses court case|url=http://mg.co.za/article/2005-06-13-rape-by-cops-state-loses-court-case|date=13 June 2005}} but criticised by some academics.{{cite journal|first=Anton|last=Fagan|title=The confusions of K|journal=South African Law Journal|year=2009|volume=126}}{{cite journal|first=Stephen|last=Wagener|title=K v Minister of Safety and Security and the increasingly blurred line between personal and vicarious liability|journal=South African Law Journal|year=2008|volume=125}} It has been approved and applied by the Court subsequently.F v Minister of Safety and Security and Another [http://www.saflii.org/za/cases/ZACC/2011/37.html (2011) ZACC 37]; 2012 (1) SA 536 (CC). The judgment is also still cited for its approach to the development of the common law and the use of comparative law.H v Fetal Assessment Centre [http://www.saflii.org.za/za/cases/ZACC/2014/34.html (2014) ZACC 34]; 2015 (2) SA 193 (CC). Finally, in Steenkamp NO v Provincial Tender Board, another case on the delictual liability of public authorities, O'Regan co-wrote a dissent (with Langa CJ) that would have held the state liable for pure economic loss caused to the winner of an unlawfully awarded tender.Steenkamp NO v Provincial Tender Board of the Eastern Cape [http://www.saflii.org/za/cases/ZACC/2006/16.html (2006) ZACC 16]; 2007 (3) SA 121 (CC).

In discrimination law, O'Regan co-authored Prinsloo v Van der Linde,Prinsloo v Van der Linde and Another [http://www.saflii.org/za/cases/ZACC/1997/5.html (1997) ZACC 5]; 1997 (3) SA 1012 (CC). which established the connection between the right to equality and dignity, and penned a unanimous judgment in the 2003 follow-up to Satchwell v President of the Republic of South Africa.Satchwell v President of the Republic of South Africa and Another [http://www.saflii.org/za/cases/ZACC/2003/2.html (2003) ZACC 2]; 2003 (4) SA 266 (CC). Better known are her two dissents. In Minister of Home Affairs v Fourie, she strongly criticised the majority for referring the regulation of same-sex marriage to Parliament rather than providing immediate relief.Minister of Home Affairs and Another v Fourie and Another [http://www.saflii.org/za/cases/ZACC/2005/19.html (2005) ZACC 19]; 2006 (1) SA 524 (CC). And her dissent in the earlier S v Jordan (co-authored with Sachs J) held that the criminalisation of sex work (and not its solicitation) unfairly discriminates on the basis of gender and is therefore unconstitutional.S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae) [http://www.saflii.org/za/cases/ZACC/2002/22.html (2002) ZACC 22]; 2002 (6) SA 642 (CC).{{cite web|url=http://www.iol.co.za/sundayindependent/top-level-of-judiciary-mostly-male-1.1743528|title=Top level of judiciary mostly male|first=Lwando|last=Xaso|publisher=IOL|date=31 August 2014}}

O'Regan's fifteen-year term ended in October 2009. Her last judgment for the Court, Mazibuko v City of Johannesburg,Mazibuko and Others v City of Johannesburg and Others [http://www.saflii.org/za/cases/ZACC/2009/28.html (2009) ZACC 28]; 2010 (4) SA 1 (CC). on the right to water, proved highly controversial. For some, it was a perceptively restrained summation of the Court's socio-economic rights jurisprudence; for others, it was a "disappointing" and "profoundly conservative" failure by the Court to come to the aid of South Africa's poorest communities.{{cite web|first=Jackie|last=Dugard|url=http://www.sacsis.org.za/site/article/373.1|title=Constitutional Water Rights Judgment Gets It Wrong|date=21 October 2009|publisher=SACSIS.org.za}}{{cite journal|first=Jackie|last=Dugard|url=http://www.pulp.up.ac.za/pdf/2010_10/2010_10_j_chapter4.pdf|title=Civil action and legal mobilisation: The Phiri water meters case|date=2010|journal=Constitutional Court Review|access-date=15 June 2015|archive-url=https://web.archive.org/web/20160304042123/http://www.pulp.up.ac.za/pdf/2010_10/2010_10_j_chapter4.pdf|archive-date=4 March 2016|url-status=dead}}{{cite web|url=http://constitutionallyspeaking.co.za/water-is-life-but-life-is-cheap/|title=Water is life (but life is cheap)|first=Pierre|last=de Vos|date=13 October 2009|publisher=Constitutionally Speaking}}

Nevertheless, O'Regan was hailed on her retirement as a "stalwart" of the Court, "among its most industrious, as well as progressive, members".{{cite web|url=http://www.theconmag.co.za/2013/09/02/a-chief-justice-who-doesnt-write-appointed-by-a-president-who-doesnt-read/|title=The Zuma Years (extract)|first=Richard|last=Calland|publisher=TheConMag|date=2013}} In the view of Johann Kriegler, her long-standing colleague, she was "the most outstanding success of the Constitutional Court".{{Cite web|url = http://www.historicalpapers.wits.ac.za/inventories/inv_pdfo/AG3368/AG3368-K40-001-jpeg.pdf|title = Constitutional Court Oral History Project: Johann Kriegler|date = 24 November 2011}} Edwin Cameron has said she is "one of the finest minds ever appointed as a judge in South Africa".{{cite web|url=http://www.historicalpapers.wits.ac.za/inventories/inv_pdfo/AG3368/AG3368-C13-001-jpeg.pdf|title=Constitutional Court Oral History Project|first=Edwin|last=Cameron|date=16 January 2012|publisher=Wits}} After O'Regan retired, along with Pius Langa, Yvonne Mokgoro and Albie Sachs, these four founding members of the Court were replaced by President Jacob Zuma's first raft of senior judicial appointees.{{cite web|url=http://mg.co.za/article/2009-05-29-zumas-judges-dilemma|title=Zuma's judges dilemma|date=29 May 2009|first1=Sello|last1=Alcock|first2=Mandy|last2=Russouw|publisher=Mail & Guardian}} This significant change in the Court's composition was seen by some as marking the start of its decline.{{Cite web|url = http://www.historicalpapers.wits.ac.za/inventories/inv_pdfo/AG3368/AG3368-C16-001-jpeg.pdf|title = Constitutional Court Oral History Project: Hugh Corder|date = 4 January 2012}}

From February to May 2008, O'Regan acted as Deputy Chief Justice in the absence of Dikgang Moseneke. It was during this period that John Hlophe allegedly approached judges Chris Jafta and Bess Nkabinde to influence their decision in litigation involving Jacob Zuma.

In March 2009, the South African government refused a visa to the Dalai Lama to attend a peace conference.{{cite web|publisher=CNN|url=http://edition.cnn.com/2009/WORLD/africa/03/23/south.africa.dalai.lama.visa/|title=Dalai Lama denied visa for South Africa peace conference|date=23 March 2009}} This perceived capitulation by the ruling African National Congress to pressure from China was widely condemned,{{cite web|url=http://www.iol.co.za/news/south-africa/outrage-at-dalai-lama-s-snub-1.437927|title=Outrage at Dalai Lama snub|publisher=IOL|date=22 March 2009}} including by then Minister of Health Barbara Hogan.{{cite web|url=http://constitutionallyspeaking.co.za/thank-you-dalai-lama-you-have-made-us-proud/|title=Thank you Dalai Lama, you have made us proud|first=Pierre|last=De Vos|publisher=Constitutionally Speaking|date=25 March 2009}} O'Regan also spoke out, publicly agreeing with Hogan and expressing her "dismay" that "human rights does not seem to enter into the picture of some foreign affairs decisions that are made".{{cite web|url=http://mg.co.za/article/2009-03-26-judge-kate-oregan-wades-into-dalai-lama-debate|title=Kate O'Regan wades into Dalai Lama debate|date=26 March 2009|publisher=Mail & Guardian}}{{cite web|url=http://www.iol.co.za/news/politics/bla-attacks-judge-for-dalai-lama-decision-1.438612|publisher=IOL|first=Sivuyile|last=Mangxamba|title=BLA attacks judge for Dalai Lama decision|date=30 March 2009}} O'Regan was heavily criticised by the government and the Black Lawyers Association, which threatened to lay a misconduct complaint against her for "concern[ing] herself with politics".

File:Khayelitsha Commission Handover.JPG's report to Premier Helen Zille.]]

O'Regan is an honorary professor at the University of Cape Town and a professor at the University of Oxford, where she serves as the inaugural director of the Bonavero Institute of Human Rights, and was a Hauser Global Visiting Professor at New York University.{{cite web|url=http://www.law.yale.edu/academics/15868.htm|title=Justice Kate O'Regan To Discuss South Africa's Constitutional Court at Sept. 13 Newman Lecture|publisher=Yale Law School|date=13 August 2012|access-date=14 June 2015|archive-url=https://web.archive.org/web/20150906080341/http://www.law.yale.edu/academics/15868.htm|archive-date=6 September 2015|url-status=dead}} She has four honorary doctorates (from the University of KwaZulu-Natal, University of Cape Town, London School of Economics and University of South Africa), is an honorary bencher of Lincoln's Inn and was elected an honorary foreign member of the American Academy of Arts and Sciences.

O'Regan served an ad hoc judge of the Supreme Court of Namibia.{{cite web|url=http://www.corruptionwatch.org.za/our-board-member/146|title=Board profile: Kate O'Regan|publisher=Corruption Watch}} In addition, she served as the president of the International Monetary Fund Administrative Tribunal and a member of the World Bank Sanctions Board. She was the inaugural chairperson, from 2008 to 2012, of the United Nations Internal Justice Council. She is on the board of several human rights NGOs, including Corruption Watch, the Council for the Advancement of the South African Constitution, the Bingham Centre for the Rule of Law, the Equal Rights Trust and the Southern African branch of the Open Society Foundations. Since 2005, she has been closely involved with the establishment of the Southern African Legal Information Institute, a web-based law reporting system that is part of the Free Access to Law Movement.

In 2013, O'Regan was appointed by Premier Helen Zille as a commissioner, with Vusi Pikoli, of the Khayelitsha Commission, tasked with investigating the alleged breakdown of policing in Khayelitsha township. The Commission released its report in August 2014.{{cite web | url=http://www.khayelitshacommission.org.za/images/towards_khaye_docs/Khayelitsha_Commission_Report_WEB_FULL_TEXT_C.pdf | title=Towards a Safer Khayelitsha | publisher=Khayelitsha Commission | date=August 2014 | access-date=3 September 2014}}

O'Regan consistently criticised the slow pace of gender transformation in the South African judiciary.{{cite web|url=http://www.sanews.gov.za/features/sa-needs-more-women-bench-judge-oregan|title=SA needs more women on the bench - Judge O'Regan|date=23 June 2009|publisher=SAnews.gov.za|first=Chris|last=Bathembu}}{{cite web|url=http://legalbrief.co.za/story/pace-of-gender-transformation-a-concern-oregan/|title=Pace of gender transformation a concern - O'Regan|publisher=Legalbrief|date=17 April 2013}}

O'Regan is married to advocate Alec Freund SC.{{cite web|url=http://www.historicalpapers.wits.ac.za/inventories/inv_pdft/AG3298/AG3298-1-047-text.pdf|title=LRC Oral History Project: Alec Freund|date=21 July 2008}} They have two children.

• List of Constitutional Court opinions of Kate O'Regan

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