Bakgatla ba Mocha (Maubane); Bakgatla ba Mocha (Phopolo Maloka) v Bakgatla ba Mmakau ba Mokgoko

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 rights in land over two properties: Zandfontein 31JR (Phake) and Bultfontein 174JR (Mmametlhake). The plaintiffs originally occupied these properties exercising indigenous land rights before common law ownership was registered in the names of white people in the late 19th century. Both communities became labour tenants under white owners prior to 1913. After 1913, both attempted to buy back portions of their historical land. The Maubane purchased the Remaining Extent of Zandfontein in 1926 through a trust arrangement with the Minister of Native Affairs, but lost the property in execution in 1934. The Maloka attempted to purchase land in 1922 but were cheated of their money. By 1948, both properties vested in the South African Native Trust. In 1923, the first defendant (Mokgoko) moved onto Bultfontein and purchased Portion A (measuring 2079 morgen and 440 square roods). In 1958, the Governor General defined the Mokgoko tribal area to include Portion A. During the 1960s, a 'betterment' scheme was introduced subjecting the plaintiffs to increased restrictions under de facto Mokgoko authority. In 1978, both properties were incorporated into Bophuthatswana. Proclamations in 1986 and 1990 extended the Mokgoko's tribal area and authority over the remainder of Bultfontein and portions of Zandfontein, without consulting the plaintiffs or obtaining their consent.

• 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 22 of 1994 when they lost their rights in land, particularly during their period as labour tenants
• Whether the inability to acquire common law title due to the Natives Land Act 27 of 1913 constituted a constructive dispossession
• Whether the transfer of the properties to the South African Native Trust dispossessed the plaintiffs of indigenous law rights in land
• Whether Proclamations 1727 of 1958, 10 of 1986, and 69 of 1990 remain in force
• Whether the 1990 Proclamation is constitutional and valid
• The precise boundaries of dispossessed land given changes in property descriptions over time

1. The questions of dispossession and the status/validity of the Proclamations were separated from remedy (Part B). 2. Declared that the 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. 3. Subject to Order 4, declared that the Maloka were dispossessed of rights in land in respect of Bultfontein 174JR and are entitled to restitution under section 2 of the Restitution Act. 4. Order 3 does not apply to Portion A of Bultfontein (2079 morgen and 440 square roods). 5. The constitutional validity of the 1990 Proclamation was postponed for further hearing following joinder of relevant functionaries. 6. Any dispute about precise boundaries may be ventilated in Part B. 7. No order as to costs.

A community can be dispossessed of rights in land as a result of past racially discriminatory laws and practices through multiple mechanisms: (1) When prevented from acquiring full common law ownership due to racist laws requiring trust arrangements where they cannot serve as trustees; (2) When land becomes subject to the South African Native Trust regime imposing intrusive restrictions on previously exercised customary law rights; (3) When their land is placed under the territorial jurisdiction of another traditional community through proclamation without consultation or consent, depriving them of customary law powers of management and control. The causal connection requirement in section 2 of the Restitution Act requires a 'concurrence of events over time' and a 'reasonable connection' rather than a single decisive cause, viewing apartheid land laws as 'labyrinthine and mutually supportive'. Proclamations defining tribal authority areas made under apartheid and homeland legislation can retain legal force in the democratic era through transitional provisions in the Traditional Leadership and Governance Framework Act 41 of 2003 and related provincial legislation, and cannot be disregarded without a court declaration of invalidity. The question whether labour tenants can hold rights 'as a community' under the Restitution Act depends on whether their occupational rights were derived from shared rules determining access to land held in common, which may differ based on the specific historical period and circumstances, and the general dictum in Goedgelegen about individualized labour tenancy does not necessarily preclude such a finding in earlier periods or where tiered traditional systems remained in place.

The Court made several important observations: (1) While the Constitutional Court's dictum in Goedgelegen suggests labour tenancy is an individualized transaction 'at its very core', this may not preclude findings that labour tenancy gave rise to communally held rights in earlier parts of the 20th century or where tiered traditional systems operated, though this was not necessary to decide; (2) The Court noted the 'painful themes' revealed by the case showing the 'distorting and diminishing effect on land rights and customary law' of colonial and apartheid legislation; (3) The Court observed that while pre-1913 dispossessions cannot ground restitution claims, regard may be had to them to 'throw light on the nature of a dispossession that took place thereafter' or show continuing discriminatory practices; (4) The Court emphasized that registered common law ownership does not always enjoy primacy over customary law title, as this 'would elevate ownership notions of the common law to the detriment of indigenous law ownership'; (5) The Court noted that 'betterment' schemes, while implemented in the name of conservation, were 'at least in some cases coerced and might better be described as forced removals'; (6) The Court remarked on the need for a holistic view of land histories given that plaintiffs 'to this day, and despite suffering the relentless impact of well over a century of land injustice' still live on the properties under customary law; (7) The Court observed that tribal authority proclamations did not confer ownership of properties, only administrative authority; (8) The Court noted that the 1990 Proclamation, if it continues to dispossess communities coercively, would limit constitutional rights to dignity, equality and cultural rights at minimum.

This case is significant for several reasons: (1) It addresses the complex interaction between pre-1913 customary land rights, labour tenancy, and the constitutional 1913 cut-off date for restitution claims; (2) It finds that attempts to purchase land blocked by racially discriminatory laws can constitute constructive dispossession; (3) It recognizes that transfer of land to the South African Native Trust dispossessed communities of indigenous law rights in land; (4) It confirms that coerced placement of communal land under another traditional community's jurisdiction constitutes dispossession (following Mahonisi); (5) It addresses whether labour tenants can qualify as a 'community' under the Restitution Act, engaging with but not definitively resolving tensions in the Goedgelegen dictum; (6) It clarifies that tribal authority proclamations from the apartheid and homeland era can survive the transition to democracy through transitional provisions in traditional leadership legislation; (7) It demonstrates the 'concurrence of events over time' approach to causation in restitution claims, recognizing the cumulative impact of the 'labyrinthine and mutually supportive' apartheid land laws; (8) It addresses the constitutional validity of apartheid-era proclamations affecting traditional authority boundaries in the democratic era.