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

The Bakgatla ba Mocha (Maubane) and Bakgatla ba Mocha (Maloka) are related traditional communities descended from Chief Matlaisane. They exercised indigenous land rights over Zandfontein 31JR (Phake) and Bultfontein 174JR (Mmametlhake) respectively before common law ownership was registered in the names of white people in the late 19th century. They became labour tenants under white owners prior to 1913. Both communities sought to purchase portions of their historical land after 1913 but were prevented by racially discriminatory laws. The Maubane purchased the Remaining Extent of Zandfontein in 1926 through a trust arrangement but lost it in execution in 1934. By 1948, both properties vested in the South African Native Trust. The Mokgoko community was coercively moved onto Bultfontein in 1923 and purchased Portion A (2079 morgen). The 'betterment' scheme was introduced in the 1960s. In 1978, both properties were incorporated into Bophuthatswana. Proclamations in 1958, 1986, and 1990 progressively extended the Mokgoko's tribal authority over the properties without consultation with or consent of the plaintiffs. The plaintiffs lodged restitution claims in 1995.

• Whether the plaintiffs were dispossessed of rights in land after 19 June 1913 as a result of past racially discriminatory laws and practices
• Whether the plaintiffs constituted a 'community' as defined in the Restitution of Land Rights Act while they were labour tenants
• Whether attempts to purchase land that were blocked by discriminatory laws constitute a constructive dispossession
• Whether becoming subject to the South African Native Trust regime constituted a dispossession
• Whether the Proclamations (1958, 1986, 1990) coercively placing land under the jurisdiction of another traditional authority constituted a dispossession
• The status and constitutional validity of the Proclamations
• Whether the Proclamations conferred ownership of the properties
• The appropriate remedy

1. Declaration that the Bakgatla Ba Mocha (Ba 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 of Land Rights Act 22 of 1994. 2. Declaration that the Bakgatla Ba Mocha (Phopolo Maloka) were dispossessed of rights in land in respect of Bultfontein 174JR (save for Portion A measuring 2079 morgen and 440 square roods) after 19 June 1913 and are entitled to restitution under section 2 of the Restitution Act. 3. Question of constitutional validity of the 1990 Proclamation postponed for further hearing following joinder of relevant functionaries. 4. Any dispute about precise boundaries of dispossessed land may be ventilated in Part B (remedy proceedings). 5. Remedy separated for determination in Part B. 6. No order as to costs.

1. The inability to acquire full common law title due to racially discriminatory laws (such as the prohibition on African land ownership in the Natives Land Act 27 of 1913), being forced instead to accept a trust arrangement without ability to serve as trustees, constitutes a dispossession of rights in land where a community sought to reacquire their historical land. 2. Becoming subject to the South African Native Trust regime after white owners left properties, which imposed progressively intrusive restrictions on land use through regulations and 'betterment' schemes, constituted a dispossession of indigenous law rights in land for traditional communities. 3. Proclamations that coercively place communal land under the territorial jurisdiction of another traditional authority without consultation or consent constitute a dispossession of rights in land, as they deprive a community of the ability to access or control land held in common subject to their shared customary law rules. 4. The causation requirement under the Restitution Act ('as a result of') requires a reasonable connection between discriminatory laws and practices and the dispossession, assessed through a context-sensitive appraisal of all relevant factors, recognizing that apartheid laws were 'labyrinthine and mutually supportive' and often the cause lies in a 'concurrence of events conducted over time' rather than a single decisive cause. 5. Apartheid and 'homeland' era Proclamations defining tribal areas and authorities retain legal force post-1994 through transitional provisions in traditional leadership legislation (Traditional Leadership and Framework Act 41 of 2003 and successor legislation) until altered through prescribed processes or declared unconstitutional.

The Court made important observations about whether labour tenancy rights can be held communally. While Goedgelegen contains a dictum suggesting labour tenancy is an individualized transaction between landowner and tenant, the Court noted this was stated in context of circumstances prevailing in 1969 and questioned whether it applies to earlier periods in the 20th century when relationships between landowners and communities were negotiated through traditional leaders and communities may have reasonably understood they held labour tenancy interests in common under shared rules. The Court found this argument persuasive but did not need to finally decide the issue. The Court emphasized that while it recognizes bonds of custom, culture and hierarchical loyalty may help define a community, there is no requirement to demonstrate an accepted tribal identity and hierarchy, and there is a low threshold for what constitutes a 'community'. The Court noted that ownership claims by chiefs over communal land are contested and do not give cognizance to the strength of rights vesting in households once land is allocated, but found it unnecessary to detail how land rights vested under customary law. The Court observed that the Proclamations did not confer ownership of land on traditional authorities - their duties were set out in the relevant legislation and none conferred ownership.

This case provides important guidance on several aspects of land restitution law. It addresses the impact of the 1913 cut-off date in circumstances where communities exercised customary law rights over land before it was titled. It clarifies that attempts to purchase land blocked by discriminatory laws can constitute a constructive dispossession. It confirms that becoming subject to the South African Native Trust regime, with its progressively intrusive restrictions, constituted a dispossession. Most significantly, it establishes that coercive placement of communal land under the jurisdiction of another traditional authority through apartheid-era Proclamations, without consultation or consent, constitutes a dispossession of customary law rights. The case demonstrates the 'concurrence of events conducted over time' that caused dispossession. It also addresses the continuing legal force of apartheid and 'homeland' era Proclamations through transitional provisions in post-1994 traditional leadership legislation, and the need to consider their constitutional validity in light of the dignitary, equality, and cultural rights protections in the Constitution. The judgment reveals the distorting and diminishing effect of colonial and apartheid legislation on customary law land rights and traditional authority structures.