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Justice Baratang Constance Mocumie

Capacity: Justice
First appointed as a judge: 2008 (Free State High Court)
Further appointments: 2016 (Supreme Court of Appeal);
2019 (Military Court of Appeal)
Gender: Female
Ethnicity: Black
Date of Birth: August 1965
Qualifications: B.Juris (UniZulu) LLB (NWU), LLM (Unisa)

Key Judgments:

Candidate Bio:

Justice Baratang Constance Mocumie currently serves as a justice of the Supreme Court of the Appeal in Bloemfontein.

A daughter of the bright Northern Cape sun, Mocumie was born in the small rural town of Warrenton, not far from where the province’s western edge meets both the North West and Free provinces.

She started her legal career in 1988 as a legal assistant in the Odi Magistrates Court in GaRankuwa, before becoming a public prosecutor in the Molopo Court in 1991. She would later be appointed as a magistrate in 1995, rising through the ranks as a district magistrate in Klerksdorp, as a magistrate lecturer at Justice College from 2001-2005, with a stint as acting regional magistrate in Pretoria from 2002 – 2003.

In 2005 Mocumie was part of the Aspirant Women Judges Programme, designed to bring in more black women to the high court judiciary. As part of that programme, she held several stints as acting judge in the Northern Cape, North West and Free State high courts from 2005 to 2008.

She was permanently appointed as a judge of the Free State High Court in 2008.

Mocumie’s appellate experience started in the Labour Appeal Court, when she acted as a judge in 2011, and later acted in the Competition Appeal Court in 2015. In that same year, she became Acting Judge President of the Free State but also accepted appointed to the Military Court of the SA National Defence Force, and became SA’s Primary Liaison Judge on Hague Convention Matters, which concern the movement of children in and out of the country.

Mocumie has sat on and penned several judgments of public importance and that have developed our jurisprudence.

In 2013, Mociume handed down the DN v MEC: Free State Department of Health judgment where a pediatric doctor was raped on duty by an intruder at Pelonomi hospital and sued the MEC of Health for damages. In trying to evade liability, the MEC relied on section 35(1) of Compensation for Occupational Injuries and Diseases Act (COIDA) and would’ve forced the doctor to only file a claim against the Compensation Commissioner. Mocumie held that the doctor’s rape could not be classified as an ‘occupational injury’ as contemplated by section 35 of COIDA and the doctor was entitled to damages from the MEC.

The matter went on appeal to the Supreme Court of Appeal where it was dismissed with costs. The court did not mince its words and sent out a strong message to employers who fail to provide reasonable measures to ensure that their employees are free from harm when on duty.

Confirming Mocumie’s judgment, Nasva JA stated that:

“I have difficulty contemplating that employees would be assisted if their common-law rights were to be restricted [to COIDA] as proposed on behalf of the MEC. If anything, it might rightly be said to be adverse to the interests of employees injured by rape to restrict them to COIDA. It would be sending an unacceptable message to employees, especially women, …that they are precluded from suing their employers for what they assert is a failure to provide reasonable protective measures against rape, because rape directed against women is a risk inherent in employment in South Africa. This cannot be what our Constitution will countenance.”

Mocumie has also shown the strong independent-mindedness one expects from a judicial leader when she wrote significant dissenting judgments which were later upheld in the Constitutional Court.

In A.B v Pridwin Preparatory School the headmaster of an elite private school canceled the school contract with the parents of two boys based on a series of explosive altercations between the father and school staff which had created a ‘toxic environment’ at the school. In the principal’s view, these events amounted to a breach of the contract and led to its termination. His view was upheld by the High Court.

The parents appealed to the SCA and argued that the termination of the contracts was unlawful as it violated constitutional provisions such as section 29(1)(a) (the right to basic education) and section 28(2) (children’s interests are paramount in all matters) and that the children were not given a hearing.

The majority of the SCA dismissed the appeal on the principle of pacta sunt servanda (contracts lawfully entered into must be honoured). The court also rejected the parents’ contention that the contractual termination violated constitutional rights and held that since the private school was not providing education in the way that the government was obliged to, the school’s only duty was not to unreasonably diminish the learner’s access to existing education. On the point of the children being heard, the SCA majority said that the children were sufficiently heard through their parents.

Mocumie dissented on this latter point and held that the school headmaster acted unconstitutionally as he should have given the children an opportunity to be heard independently from their parents before terminating the contract.

Mocumie’s dissent was upheld in the Constitutional Court, which found that the school’s termination was unconstitutional.

In Director General v Mwelase, Mocumie a case concerning the lawfulness of the government’s reopening a new land claims process without having dealt with old land claims, the applicants asked for the extraordinary remedy that the court appoint a government official called a ‘Special Master’ to quickly process their old land claims. The SCA majority held that granting such a remedy would be ‘judicial overreach’ that encroaches on the terrain of the government.

Mocumie wrote a dissenting judgment, holding that there was ample ground for a special master to be appointed. The Constitutional Court upheld Mocumie’s dissent and ordered the government to establish a special master.

The 57 year-old Mocumie holds a B.Juris degree from University of Zululand, an LLB from the North West University, and an LLM from Unisa.

Outside of the bench, Mocumie wears many hats. Amongst them is being the founder of the Magareng Education Trust and serving as a member of the Restorative Justice Centre.  Her biggest contribution has been as a member of the South African Chapter of the International Association of Women Judges – an 1100-member serving to advance women’s rights in the judiciary. There she served as deputy president and later president, and has run several programmes on mentorship for young women lawyers, drafting a judicial manual on trafficking in persons, and lately an anti-sexual harassment policy for the judiciary,

She was unsuccessfully interviewed for Free State High Court judge president in 2014 and now seeks a judicial leadership post as Electoral Court chairperson October 2022.

October 2022 Interview:

October 2022 JSC interview of Judge Baratang Constance Mocumie for the position of chairperson of the Electoral Court: Judge Mocumie‘s application was unsuccessful.

2016 interview

April 2016 Interview Synopsis

Mocumie was nominated for appointment by the Judicial Service Commission after deliberations that ran into the early hours of Tuesday morning. She was asked the usual openers by Supreme Court of Appeal (SCA) President Lex Mpati about how she found the collegiality at the court, and its processes around hearing oral argument and writing judgments.

Mpati then observed that when Mocumie had finished her last acting stint at the SCA in 2014 she had told him that she was “not ready for the SCA and that [she] needed more experience”.

Mocumie said that once she had returned to the High Court in the Free State she could “appreciate better what was required in the appeal court” and that she had also used the lessons learnt at the SCA and the Competitions Appeal Court to good use in her regular nine-to-five in Bloemfontein.

She added that she may have been unduly self-deprecating in that conversation and that her subsequent experience in the high court would suggest she was in fact ready.

Mpati then asked Mocumie whether she had applied for the SCA job because of her failed interview for appointment as judge president of the High Court in the Free State last year. She denied this,

Commissioners quizzed Mocumie on a range of issues, including her thoughts on what the obstacles to justice were (Inaccessibility of courts because of geography and poverty), her language proficiency (She speaks six of the country’s 11 official languages) and whether hearings should be televised (Yes, to ensure media freedom, but with the recognition that it changes the manner of both judicial officers and witnesses).

Mocumie was as straight-talking during her as she has been in previous appearances before the JSC. The Free State High Court judge doesn’t pull punches. During her unsuccessful 2014 interview to head her division, she noted that there are “divergent views on the transformation of the judiciary” and while the “Judicial Service Commission has tried to deal with it head on … we are not speaking the same language”.

Turning to the female members of the then newly constituted commission, she urged them to fight “this man thing” of “guys clubbing together” and to take up the cudgels for gender transformation within the JSC.