Tuesday, December 2, 2014
South African flag painted on a hand depicting the V for victory sign

Former justice Catherine O’Regan, the 2014 David B. Goodman lecturer, assesses South Africa's 20-year-old constitution

By Sandra Bartlett

Catherine O’Regan had a front row seat for South Africa’s transition to a democracy. As a former judge on the South African Constitutional Court she is well placed to provide a report card on its first 20 years.

Her insider’s view was the topic of the Faculty of Law's 2014 Goodman Lecture, South Africa’s Constitution at Twenty: An Assessment at Victoria College on November 27th.

It was February 2, 1990.  President F. W. de Klerk was about to make the opening address to parliament.  There were rumours he would free Nelson Mandela after 27 years in prison and the world’s media was in Cape Town.  But when her colleagues gathered to watch the address on TV, O’Regan, in the midst of moving offices, refused to join them.

“I said, ‘Absolutely not. I am tired of hearing national party politicians make promises they are not going to keep,’ and I continued moving the boxes into my office.” 

But when she heard the ‘whoops’ of joy throughout the building she realized something significant had happened.

“At a time in our history when we had a state of emergency and the liberation movements had been banned for 30 years, the idea of a transition to democracy still seemed very far away. And frankly with one speech, President de Klerk changed that."

The president announced the end of apartheid and days later Nelson Mandela walked out of prison.  Four years after that, Mandela became president in the country’s first democratic elections.

In the lead up to that election, the principles of the new democracy had to be defined.

“There were moments when we really felt it was going to fall apart, and there were issues on the table that seemed divisive and intractably difficult,” said O’Regan.

One issue was timing. The National government wanted to create a constitution before the elections, while the liberation movements argued the results of the elections should guide its creation.

In the end, they agreed on 34 broad principles, including an independent judiciary and a bill of rights.  The constitution itself would be negotiated at a constitutional assembly after South Africans had voted.  

The next question was who would determine whether the final constitution included those 34 principles?  That led to the creation of the Constitutional Court by President Nelson Mandela right after the 1994 elections.

O’Regan was just 37 years old when she was appointed to the Court by Mandela. As a lawyer and law professor who had worked and studied on three continents, she was up to the task.  She served on the Court for 15 years—crucial years when South Africa’s constitution was created and tested.  

South Africans wanted a say in their constitution; they came to the meetings held around the country and made 1.7 million submissions. O’Regan points to two protections in particular that came out of that process.  One prohibits discrimination on the grounds of sexual orientation. The other guarantees cultural and religious rights.

Many of the laws challenged over the years were not defended by government lawyers, said O’Regan. “The government lawyer stood up and said ‘Well actually we are just going to concede the constitutionality point, and we just want to move to remedy’.”

“It made it into the constitution and I don’t think it would have been put in there by the African National Congress, or the National Party, had it not been for that process of participation and struggle.”

They looked at the constitutions of recent democracies and included specific language to protect and enhance social and economic rights, such as the right to an education, clean water and a safe environment.

One of the challenges, said O’Regan, has been the composition of the judiciary.

“This has been a key theme of the past 20 years. This has been trying to turn the bench into a bench that looks like a South African bench, that it is not just white men,” said O’Regan.

In 1994, the 11-member court had nine men and two women, of whom seven were white and four were black.

“We have made enormous strides on the issue of race, and we now have seven black judges and three white.”  (There is one vacancy.)

Gender equality, however, has been slower.  In 2014, there are still only two women on the court.

“I think that is quite improper. There really have been very good candidates that have just been overlooked,” said O’Regan.

The demographics of the bench are important for legitimacy.  “When you walk into a courtroom which looks like a broad picture of your society, people feel better about the court when it’s diverse.”

It also enhances impartiality.  "We all go to the bench with a set of assumptions and preconceptions that are partly learned, partly imbued in us…All of us feel quite comfortable retreating to people we know we can agree with, but that is not the task of a judiciary.”

Many of the laws challenged over the years were not defended by government lawyers, said O’Regan.

“The government lawyer stood up and said ‘Well actually we are just going to concede the constitutionality point, and we just want to move to remedy’.”

Some of the laws were leftovers from the apartheid era but in many cases the failure to argue justification has been an issue of competence.  “It is a very specific, empirical exercise.  A good justification case requires quite a thoughtful approach to the kind of information the court is going to find influential.”

There have been 541 judgments since 1995; a reasonable number said O’Regan. But the number of applications for leave to appeal has grown since the constitutional amendment of 2013. It gave the court the right to consider cases that aren’t distinctly constitutional but raise an issue of public importance.

Access to housing has been the most litigated area under social and economic rights. More than 3 million houses have been built since 1994 as a result of court decisions; another 2 million are still needed.

South Africans have embraced the Constitution and are demanding their rights. And that is an ongoing headache for government, said O’Regan.

“I have had several members of government say to me if we knew what we were getting ourselves into we would never have economic and social rights in the constitution.”

However O’Regan believes those rights are key to eliminating the inequality and poverty that still exist in South Africa today.