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 traditional communities, the Bakgatla Ba Mocha ba Maubane and the Bakgatla Ba Mocha ba Maloka, over the farms Zandfontein 31JR and Bultfontein 174JR in Limpopo/Gauteng. The communities occupied and exercised customary law land rights over these properties in the 19th century before the land was transferred into common-law ownership in the names of white settlers. Prior to 1913, both communities became labour tenants under white owners. After 1913, they attempted unsuccessfully to regain ownership of their ancestral land due to racially discriminatory laws. By 1939–1948 ownership of the land (save for a portion of Bultfontein) vested in the South African Native Trust, reducing the plaintiffs to Trust tenants. Through Proclamations issued in 1958, 1986 and 1990, large parts of the claimed land were placed under the authority of another traditional community, the Bakgatla Ba Mmakau Ba Mokgoko, without the plaintiffs’ consultation or consent. The plaintiffs alleged that these measures dispossessed them 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. The Mokgoko opposed the claims, arguing that the plaintiffs lost their rights before 1913 and were not a ‘community’ for purposes of the Act.

The Court declared that the Bakgatla Ba Mocha (Maubane) were dispossessed of rights in land in respect of Zandfontein 31JR after 19 June 1913 and are entitled to restitution under section 2 of the Restitution Act. It further declared that the Bakgatla Ba Mocha (Phopolo Maloka) were dispossessed of rights in land in respect of Bultfontein 174JR and are entitled to restitution, excluding Portion A of Bultfontein. Issues relating to remedy and the constitutional validity of the 1990 Proclamation were postponed to Part B. No order as to costs was made.

The judgment is significant for its nuanced treatment of community restitution claims where customary law land rights were eroded through labour tenancy, Trust ownership and homeland-era proclamations. It clarifies that labour tenancy does not necessarily negate the existence of a ‘community’ under the Restitution Act and affirms that dispossession can occur through cumulative statutory and administrative measures after 1913. The case contributes to restitution jurisprudence on the impact of apartheid-era proclamations that reallocated land and authority between traditional communities without consent.