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

The first and second plaintiffs, the Bakgatla ba Mocha ba Maubane (Maubane) and Bakgatla ba Mocha ba Maloka (Maloka), are related traditional communities claiming restitution of Zandfontein 31JR and Bultfontein 174JR. Both communities occupied these properties under customary law before common law titling in the late 19th century. They became labour tenants under white owners prior to 1913. Both communities attempted to purchase back portions of their historical land after 1913 but failed due to racially discriminatory laws, particularly the Natives Land Act 27 of 1913 which prohibited African land ownership outside scheduled areas. The Maubane purchased the Remaining Extent of Zandfontein in 1926 through a trust arrangement but lost it in execution in 1934. The Maloka were cheated of their money attempting to purchase land. The Mokgoko (first defendant) arrived on Bultfontein in 1923 under State coercion and purchased Portion A (2079 morgen and 440 square roods). By 1948, both properties vested in the South African Native Trust. The communities continued living there as Trust tenants with limited rights. Proclamations made in 1958, 1986 and 1990 extended the Mokgoko's tribal authority over the properties, depriving the plaintiffs of management and control over their customary land without consultation or consent. The betterment scheme introduced in the 1960s imposed further restrictions. In 1978, both properties were incorporated into Bophuthatswana.

• Whether the plaintiffs were dispossessed of rights in land after 19 June 1913 as a result of past racially discriminatory laws and practices as contemplated by section 2 of the Restitution of Land Rights Act 22 of 1994
• Whether the plaintiffs constituted a 'community' as defined in the Restitution Act during their labour tenancy period and thereafter
• Whether attempts to purchase land that were blocked by racially discriminatory laws amounted to constructive dispossession
• Whether transfer of land to the South African Native Trust and subsequent trust arrangements constituted dispossession
• Whether the imposition of tribal authority through Proclamations without consent constituted dispossession
• The status and constitutional validity of Proclamation No 1727 of 21 November 1958, Proclamation 10 of 20 June 1986 and Proclamation 69 of 23 March 1990
• Whether labour tenancy rights can be held communally under shared rules or are necessarily individual

1. Questions of dispossession and status of Proclamations separated from remedy (Part B). 2. Declared that the Bakgatla Ba Mocha (Ba Maubane) were dispossessed of rights in land in Zandfontein 31JR after 19 June 1913 as a result of past racially discriminatory laws and practices and are entitled to restitution under section 2 of the Restitution Act. 3. Subject to Order 4, declared that the Bakgatla Ba Mocha (Phopolo Maloka) were dispossessed of rights in land in Bultfontein 174JR as a result of past racially discriminatory laws and practices and are entitled to restitution under section 2 of the Restitution Act. 4. Order 3 does not apply to Portion A of Bultfontein 472 (measuring 2079 morgen and 440 square roods). 5. Question of whether the 1990 Proclamation is inconsistent with the Constitution postponed for further hearing following joinder of relevant functionaries. 6. Any dispute about precise boundaries due to changes over time may be ventilated in Part B. 7. No order as to costs.

The binding legal principles established are: (1) Racially discriminatory laws preventing African people from holding full ownership or acting as trustees when purchasing land constitutes dispossession, even where purchase occurred, as it deprives communities of full ownership incidents. (2) Transfer of land to the South African Native Trust and subjection to its regulatory regime, combined with betterment schemes, dispossessed communities of customary land rights where, absent such regime, they would have managed land under shared customary rules. (3) Proclamations placing communal land under the jurisdiction of another traditional authority without consultation or consent of the affected community constitute dispossession of rights in land under customary law, specifically the power to manage and control land. (4) For restitution claims, causation requires reasonable connection between discriminatory laws/practices and dispossession, not sole cause, and the Court must consider the concurrence of discriminatory events over time. (5) 'Dispossession' in the Restitution Act is a broad concept determined substantively, not technically, and does not require physical removal or forced removal. (6) Proclamations defining tribal areas and authorities under apartheid and homeland legislation survive the transition to democracy through transitional provisions in the Traditional Leadership and Governance Framework Act 41 of 2003 and provincial legislation, and retain legal force until altered through prescribed processes or declared unconstitutional.

The Court made important obiter observations: (1) The dictum in Goedgelegen that labour tenancy is an individualized transaction 'at its very core' should not be understood to preclude all circumstances where labour tenancy gives rise to communally-held rights, especially in the earlier 20th century where tiered systems existed with negotiation through traditional leaders. The Court found this argument persuasive but did not need to decide it on the facts. (2) Pre-1913 racially discriminatory laws and practices may be considered if they illuminate the nature of post-1913 dispossession or show it resulted from discriminatory laws still operative at the time. (3) The Court cannot disregard legal acts (here, Proclamations) without recourse to law, even where made under discriminatory regimes, following the Oudekraal/Kirland principle. (4) Claims that communal land was historically 'owned by' chiefs are contested and do not recognize the strength of rights in households once land is allocated; the Court did not need to determine details of how land rights vested under customary law. (5) Traditional authorities established under apartheid and homeland legislation have been transformed into traditional councils under post-1994 legislation, and their areas of jurisdiction retain significance through transitional provisions. (6) The Court expressed the 'pain' caused by the Constitution's 1913 cut-off date for restitution where communities lost customary title through pre-1913 titling.

This judgment is significant for several reasons: (1) It addresses the painful impact of the 1913 cut-off date for restitution claims where communities held customary title before common law titling occurred pre-1913. (2) It finds that blocked attempts to purchase land under common law after 1913 can constitute dispossession where communities sought to reacquire historical land. (3) It clarifies that trust arrangements imposed by racially discriminatory laws, which prevented African people from holding full ownership or trusteeship, constituted dispossession. (4) It recognizes that transfer to the South African Native Trust and subsequent regulatory restrictions, including betterment schemes, dispossessed communities of customary land rights. (5) It confirms that coerced placement of communal land under another traditional authority's jurisdiction without consultation or consent constitutes dispossession (following Mahonisi). (6) It leaves open the important question of whether labour tenancy rights can be held communally under shared rules, declining to extend the Goedgelegen dictum beyond its factual context. (7) It addresses the survival of apartheid and homeland-era Proclamations through transitional provisions in post-democratic traditional leadership legislation, and the constitutional issues this raises. (8) It demonstrates the Court's approach to causation in restitution claims, requiring reasonable connection rather than sole or decisive cause, and recognizing the concurrence of discriminatory events over time.