Baratang Constance Mocumie
Justice of the Supreme Court of Appeal of South Africa
By Nomvelo Kunene and Omolola Botsane
Justice Baratang Constance Mocumie was born on 10 August in the small agricultural town of Warrenton in the Northern Cape province of South Africa. Justice Mocumie attended primary school in several mud schools and church buildings in Warrenton before completing high school at St. Paul’s High School in the North West province. Both Justice Mocumie’s parents were teachers; her mother, Ma Poppie Mocumie, initially worked as a domestic worker, but through sheer determination, went on to qualify as a teacher.
During the 1986 State of Emergency, Justice Mocumie was charged under the Riotous Assemblies Act for her participation in the liberation struggle. This experience fuelled her desire to correct the injustices of the apartheid system, leading her to study law. Being treated as equal to any task by her father, as well as witnessing her mother’s resilience to obtain an education, amongst other things, further inspired her to study law.
She obtained her BLuris degree from the University of Zululand and an LLB degree from the University of North West. She holds a Masters in Law from the University of South Africa, specializing in Family Law. She started her legal career as a State Prosecutor at Ga-Rankuwa Magistrates Court, North West, and later at the Molopo Magistrates’ Court in Mmabatho and Klerksdorp Magistrates Court. In April 1994, she was appointed a magistrate in the Mmabatho District Court. She later joined Justice College in Pretoria. She served as both a regional court magistrate and a lecturer in criminal law, family law, and social context (now known as diversity training) until 2005.
Her career in training commenced when she facilitated and presented workshops under the South African Council of Churches banner, to empower women and children on domestic violence and sexual offenses. In 2003, she was admitted as an Advocate of the High Court, and a few years later, she presided as an acting judge of the high courts in the Northern Cape, North West, and Free State High Court Divisions. She was later appointed a judge permanently in the Free State Provincial Division of the High Court in Bloemfontein. Presently, Justice Mocumie is a Judge in the Supreme Court of Appeal (SCA) and a Judge of Appeal in the South African National Defence Force’s Military Court.
She has previously acted in the Labour Appeal Court, the SCA, and the Competition Appeal Court. Her 2016 appointment to the SCA was a significant moment as very few black African women had been appointed to the SCA at the time. Justice Mocumie has displayed her independent thinking through significant dissenting judgments she delivered in the Supreme Court of Appeal, which South Africa’s Constitutional Court subsequently supported. One such example is the case of Ruta v Minister of Home Affairs. In this case, Mr. Ruta was arrested in Pretoria for traffic violations and later convicted and imprisoned for those offenses. The Department of Home Affairs applied for his deportation back to Rwanda. The Minister of Home Affairs refused an asylum status application by Mr. Ruta under the Refugees Act because his application was submitted late. The majority judgment of the SCA found that Mr. Ruta had failed to apply for asylum without delay and was consequently disqualified from applying for and receiving a refugee permit because he had been convicted of a traffic violation.
Justice Mocumie dissented in this ground-breaking judgment, finding that Mr. Ruta was to be afforded access to the Refugees Act application process as he had indicated his intention to apply for refugee status. Furthermore, only crimes committed outside of South Africa precluded an asylum application. The Constitutional Court overturned the majority judgment (ruling in line with the dissenting judgment of Justice Mocumie) and held that Mr. Ruta was able to apply for asylum and was not disqualified from doing so.
In another dissent in the Pridwin Preparatory School judgment, which involved an independent school’s reliance on a cancellation clause in a contract it had entered into with a learner’s parents, four justices of the SCA rejected the argument that the constitutional principle of “the best interests of the child”, gave rise to the child’s right to be heard before the parents’ contracts were terminated. Moreover, the majority found that the obligation to provide basic education is an obligation on the state, not one imposed on private institutions. Justice Mocumie found that the other four judges’ reasoning diverged substantially from the plethora of judgments of the SCA and the Constitutional Court concerning the child’s best interests.
Justice Mocumie found that the school had acted unreasonably in terminating a contract without considering the best interests of the child and also found the termination clause contrary to public policy. The Constitutional Court endorsed Justice Mocumie’s dissent, finding that the school had failed to determine what was in the best interests of the child. Finding further that Justice Mocumie had correctly reasoned her dissent and endorsed her view that “a contract with an independent school for the provision of an education is ‘distinctly different’ from an ordinary commercial transaction.”6
These dissenting judgments speak to Judge Mocumie’s jurisprudential prowess in delivering significant, ground-breaking judgments. They also highlight her care and compassion for the vulnerable in society. In a judgment which the SCA confirmed on appeal in 2014, MEC v DN Judge Mocumie held that an incident of rape that occurred when a woman pediatrician was on duty ‘did not arise out of and in the course of the doctor’s employment as a Registrar and that consequently, the rape was not an accident contemplated by S. 35 of COIDA. In essence, she held that the attack on the doctor bore no relationship to her employment and dismissed the MEC’s special plea with costs.
Justice Mocumie is acutely aware of the struggles that women like her encounter in a male- dominated judiciary. She is a founding member of the South African Women Lawyers Association (SAWLA) and the South African Chapter of the International Association of Women Judges (SAC- IAWJ), an organization that seeks to achieve the emancipation of women on the bench. Her commitment to attaining gender equality on the High Court bench has contributed to substantial subsequent appointments of women from the magistracy and other career paths to the judiciary, but there is no doubt that much more needs to be done to address the disparity. She served as the President of the SAC-IAWJ and represented women judges and the judiciary at regional and international conferences. During the interview, she especially remarked that her route to the bench has not been an easy one and that she had to work ten times as hard as her male counterparts to get to where she is today. She believes that further work is necessary to address the gender imbalances in our society, as women judges are under-represented on the bench.
Her active involvement in both the National Association of Democratic Lawyers and Black Lawyers Association preceded her appointment as a judge. She held several provincial and national leadership positions in the Judicial Officers Association of South Africa. She has also sat on the boards of the Restorative Justice Centre and AIDS Foundation, South Africa. She also serves on The Hague Conference on Private International Law, an inter-governmental organization in the area of private international law that administers several international conventions, protocols, and soft law instruments, and as a board member on the Forum on Judicial Leadership, Democratic Rights, and Governance Unit, University of Cape Town.
Justice Mocumie is an advocate for the single judiciary in South Africa and is well acquainted with the quality and expertise of many presiding Magistrates. She is a gender activist and scholar who believes in equal opportunities for all legally qualified persons especially women in ascending the benches of all South African courts. As the first judge to be appointed to the SCA from the ranks of the magistracy, she brings a wealth of understanding of the socio-economic dynamics that ordinary citizens of South Africa endure in seeking justice, in particular gender justice. Whilst there have been significant strides in appointing judges of the High Court from the rank of magistrates, she believes that effort must be made to ensure that there is ascendancy to other superior courts such as the Supreme Court of Appeal and the Constitutional Court. Since her appointment to the High Court bench in 2008, several other Judges were appointed directly from the Magistrate’s ranks.
Despite her busy schedule, Justice Mocumie has made an active effort to mentor young women and girls in her free time – sharing her personal experiences and providing career guidance. She is a firm believer in investing in future generations and makes a conscious effort to play her role in inspiring young girls and women. She is also a mother to two beautiful children and a grandson who are her pride and joy.
Justice Mocumie is a leader in the judiciary and an excellent example for other young lawyers to follow and aspire to be, women lawyers, in particular, showing that through hard work, determination to rise above and against all odds and tenacity, barriers can be broken down.