Bakgatla Ba Mocha (Maubane) and Bakgatla Ba Mocha (Phopolo Maloka) v Bakgatla Ba Mmakau Ba Mokgoko and Others

The case concerns restitution claims by two related customary communities, the Bakgatla Ba Mocha ba Maubane and the Bakgatla Ba Mocha ba Maloka, in respect of two farms: Zandfontein 31JR and Bultfontein 174JR. The communities occupied and exercised indigenous land rights over these properties under customary law in the 19th century, prior to their transfer into common law title in the names of white settlers. Following titling, both communities became labour tenants before 1913. After 1913, they attempted unsuccessfully to repurchase portions of their land and remained vulnerable to eviction. Ownership of most of the land later vested in the South African Native Trust under the Native Trust and Land Act 1936. Through a series of Proclamations (1958, 1986 and 1990), state authorities placed the land under the jurisdiction of another traditional authority, the Bakgatla Ba Mmakau Ba Mokgoko, without the plaintiffs’ consent. The plaintiffs alleged that these processes amounted to dispossession of rights in land after 19 June 1913 as a result of racially discriminatory laws and practices, entitling them to restitution under the Restitution of Land Rights Act 22 of 1994.

It was declared that the Maubane were dispossessed of rights in Zandfontein 31JR and the Maloka were dispossessed of rights in Bultfontein 174JR (excluding Portion A of Bultfontein). Both communities were declared entitled to restitution under section 2 of the Restitution of Land Rights Act. Issues of remedy and the constitutional validity of the 1990 Proclamation were postponed. No order as to costs was made.

The case is significant for its nuanced application of restitution principles to customary communities who became labour tenants and later Trust tenants, affirming that such communities may still qualify for restitution as communities. It also contributes to jurisprudence on the impact of apartheid-era Proclamations and homeland governance on customary land rights, and underscores the enduring effects of racially discriminatory land administration beyond formal dispossession.