2
COMMISSIONER OF LAND
CLAIMS COMMISSION

REGIONAL LAND CLAIMS
COMMISSION, LIMPOPO Second Interested Party

Concerning
Zandfontein 31JR and Bultfontein
174 JR




ORDER




1. The questions a) whether the plaintiffs were dispossessed of rights in land
in respect of Zandfontein 31JR and Bultfontein 174JR after 19 June 1913
as a result of past racially discriminatory laws and practices and b) the
status and constitutional validity of Proclamation No 1727 of 21
November 1958, Proclamation 10 of 20 June 1986 (the 1986
Proclamation) and Proclamation 69 of 23 March 1990 (the 1990
Proclamation) are separated from the issue of remedy, which is to be
determined in Part B.

2. It is declared that the Bakgatla Ba Mocha (Ba Maubane) were
dispossessed of rights in land in respect of 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 of Land
Rights Act 22 of 1994 (the Restitution Act).

3. Subject to Order 4, it is declared that the Bakgatla Ba Mocha (Phopolo
Maloka) were dispossessed of rights in land in respect of Bultfontein
3
174JR as a result of past racially discriminatory laws and pr actices and
are entitled to restitution under section 2 of the Restitution Act.

4. Order 3 does not apply to the Portion of Bultfontein 174JR described in
1944 as Portion A of Bultfontein 472 and measuring two thousand and
seventy -nine (2079) morgen, four hu ndred and forty (440) square roods
(Portion A).

5. The question whether the 1990 Proclamation is inconsistent with the
Constitution is postponed for further hearing following joinder of relevant
functionaries.

6. Any dispute about the precise boundaries of the dispossessed land as a
result of changes to the boundaries or descriptions of the properties over
time may be ventilated in Part B.

7. There is no order as to costs.



JUDGMENT



COWEN DJP
Introduction
[1] This case brings into focus painful themes in this country’s land history . It
reveals the distorting and diminishing effect on land rights and customary law
of some of the most racially and culturally offensive and degrading legislation
that emerged duri ng colonial and apartheid rule. Specifically, the Natives Land
4
Act 27 of 1913 (the 1913 Act),1 the Native Administration Act 38 of 1927 (the
1927 Act),2 the Native Trust and Land Act 18 of 1936 (the 1936 Act),3 the Bantu
Authorities Act 68 of 1951 (the 1951 Act) and related legislation that emerged
during the ‘ homeland ’ era in the former Bophuthatswana. The case also
highlights the impact of the Constitution’s 1913 cut -off date for claimants
seeking restitution under the Restitution of Land Rights Act 22 of 1994 (the
Restitution Act), in circumstances where the plaintiffs ’ historical land became
subject to common law titling in the late 19th century .4

[2] The disp ute concerns restitution claim s of the first and second plaintiffs,
respectively, the Bakgatla ba Mocha ba Maubane (the Maubane ) and the
Bakgatla ba Mocha ba Maloka (the Maloka ).5 The Maubane and the Maloka are
related to each other through the ir common ancestor, Chief Matla isane, and
before him, Chief Tabane. Chief Matla isane had two wives: the Maubane
originate from the senior house and the Maloka from the junior house.

[3] Although the referred claims concern numerous farms, the dispute
currently before the Court, and in turn, this judgment, relate to two claimed
properties being Zandfontein 31R (Zandfontein) and Bu ltfontein 174JR
(Bultfontein).6 The Maubane claim Zandfontein , which they call Phake, and the

1 Subsequently renamed the Black Land Act.
2 Subsequently renamed the Black Administration Act.
3 Subsequently renamed the Bantu Trust and Land Act, 1936 and thereafter the Development Trust and Land
Act.
4 Section 25(7) of the Constitution of the Republic of South Africa 1996 provides: ‘A person or community
dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is
entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable
redress.’ In Department of Land Affairs and others v Goedgelegen Tropical Fruits (Pty) Ltd [2007] ZACC 12;
2007(10) BCLR 1027 (CC); 2007(6) SA 199 (CC) ( Goedgelegen ) para 20, Moseneke D CJ remarked: ‘For
better, for worse and perhaps for reasons better left unexplored, our Constitution has chosen not to provide for
restitution of or equitable redress for property dispossessed prior to the 19 June 1913.’
5 The Maubane claim was lodged by M r Obed Maubane on 25 February 1995, and the Maloka claim was lodged
by Mr Abel Maloka on 13 February 1995.
6 The properties have been described differently over time and been subject to a process of subdivision and
consolidation. I allude to this at variou s points in this judgment and make provision for potential resultant
disputes in my order.
5
Maloka claim Bultfontein, which they call Mmametl hake, the place of
suffering .7 The story of the loss of their land rights expos es the harms the
Constitution is intended to redress.

[4] The Maubane and Maloka e xercised indigenous land rights over ,
respectively, Zandfontein and Bultfontein, before common law ownership of the
properties was registered in the name of white people in the late 19th century.8
Both the Maubane and the Maloka became labour te nants under the white
owners prior to 1913 . Both then sought to buy back portions of their historical
land under common law after 1913 , ultimately to no avail. They were
perpetually vulnerable to and at times subjected to eviction .

[5] In 1923, and through State co ercion, the first defendant, the Bakgatla ba
Mmakau ba Mokgoko (the Mokgoko ) moved from a place called Elsjeskraal
onto Bultfontein , further impacting the Maloka. The Mokgoko then purchased a
portion of Bultfontein, known at that time as Portion A .

[6] By 1948 , ownership of both Zandfontein and Bultfontein (save for
Portion A) vested in the South African Native Trust (the Trust) established under
the 1936 Act.9 The Maubane , after 1948, and the Maloka , after 1939, became
Trust tenants with limited rights and , while able to assert a level of control over
the land as traditional communities, were subject to intrusive and restrictive
regulations. In 1958, the then Governor General of South Africa made a
Proclamation under the 1927 Act and the 1951 Act, in terms of which he
defined the area of the Bakgatla Ba Mmakau Tribe (ie the Mokgoko ) to include
Portion A of Bultfontein (the 1958 Proclamation) thereby conferring various

7 The witnesses interchangeably used the vernacular and cadastral names of the properties and familiarity with
both is required to understand the record. The plaint iffs’ historical familiarity with the properties and the
surrounding area is not determined by or restricted to cadastral boundaries: their occupation predates titling.
8 For a consideration of the nature of customary law title, in context of the Richters veld community in the
Northern Cape, see Alexkor Ltd and another v Richtersveld Community and others 2004(5) SA 460 (CC);
2003(12) BCLR 1301 (CC) (Richtersveld )
9 The Trust was subsequently renamed the South African Development Trust.
6
powers on the Mokgoko . The so called ‘b etterment ’ scheme was introduced in
the area in the early 1960s, which resulted in the Maubane and Maloka being
subjected , without their consent, to increased restri ctions on their use of
Zandfontein and the remainder of Bultfontein under de facto Mokgoko
authority .

[7] In 1977, t he South African P arliament granted ‘independence’ to
Bophuthatswana .10 In 1978, both Bultfontein and Zandfontein were
incorporated into the territory of Bophuthatswana11 and subject to the laws of
that territory , including the Bophuthatswana Traditional Authorities Act 23 of
1978 (the 1978 Bophuthatswana Act) and the Bophuthatswana Land Control
Act 39 of 1979 . On 6 June 1986, the then President of Bophuthatswana made a
Proclamation (the 1986 Proclamation) under the 1978 Bophuthatsw ana Act . The
1986 Proclamation repealed the 1958 Proclamation, and redefined and extended
the boundaries and tribal area and tribal authority of the Mokgoko (referred to
as the Bakgatla Ba Mmakau Tribe ), in effect extending it to consist of ‘the
whole of Bultfontein 174JR ’ and a portion of Zandfontein referred to as ‘the
Remainder of Zandfontein 31JR ’. The Mokgoko ’s tribal area was then extended
further into Zandfontein under a third Proclamation, made on 23 March 1990
(the 1990 Proclamation).12 The 1990 Proclamation withdrew the 1986
Proclamation and redefined the ir tribal area to consist of Bultfontein 174JR and
Zandfontein 31JR (the Remaining Extent and Portion 2).

[8] The plaintiffs claim that they were dispossessed of their rights in land as a
result of past racially discriminatory laws and practices as a result of these
processes . They assert their rights under the Restitution Act as a community
rather than as individual claimants. They contend that the Proclamations have

10 In terms of the Status of Bophuthatswana Act 89 of 1977.
11 In terms of the Bophuthatswana Border Extension Act 8 of 1978.
12 Government Notice 69 of 23 March 1990.
7
been impliedly repealed , by the Restitution Act alternatively are
unconstitutional and invalid . It can be accepted, in this regard, that the
Proclamations were made without consulting the pl aintiffs and without their
consent.

[9] The first defendant , the Mokgoko , oppose the plaintiffs’ claims. They
dispute the plaintiffs have any cognisable claim to restitution under the
Restitution Act, contending that they lost their customary rights to the land prior
to 1913 and after 1913, they no longer constituted a community as defined in
the Restitution Act. They assert land rights on both Bultfontein (Mmametlhake)
and Zandfontein (Phake) arising from their alleged ownership of the propert ies
and as a result of the 1958, 1986 and 1990 Proclamations .

[10] The Commission for the Restitution of Land Rights, represented in these
proceedings by the First and Second Interested Parties, s upport the plaintiffs’
claims. Subject to this Court’s findings on restorability, the Commission wishes
to transfer ownership of the claimed properties to the plaintiffs and contend that
the Proclamations present no impediment to doing so.

[11] The parties ventilated the dispute by way of trial proceed ings. Six
witnesses testified. The pla intiffs called three witnesses. First, Mr Ramankwe
Charles Ma loka testified for the Maloka. Mr Maloka is a direct descendant of
the late Regent Phopolo Mal oka and before him, Chief Matla isane. Secondly,
Mr Ichabod Segotho Maubane testifi ed on behalf of the Maubane. Mr Maubane
is also a direct descendant of the late Chief Matla isane. The plaintiffs’ third
witness was Mr Makondelele Mugwabana, the author of the Commission’s
research reports.

[12] The first defendant called three witnesses. First, they called Princess
Kgomotso Salaminah Mokgoko, the current leader of the Mokgoko. Her late
8
father, Chief Elias Mapale Mokgoko led the Mokgo ko from 1958 until his
death. The first defendant’s second witness was Mr Sethonya Moses Kgafel a, a
member of the Mokgoko and resident on Bultfontein. The third witness was Mr
Malatsi Moagi , a member of the Maubane .

[13] The Court received documentary evidence in four lever arch files marked
Exhibit A, B, C and D.13 The parties agreed that save for the Commis sion’s
research reports, which were introduced by Mr Mugwabana, the Court could
accept that all of the docume nts in the Exhibits were copies of authentic
documents. Importantly, t he agreement extended to allow the Court to receive
the documents in the Exhibits as evidence before it, without the need for a
witness either to introduce it as evi dence or refer to its content. That agreement
did not, however, entail any concessions as to the truth of the content of any of
the do cuments.14

[14] Before the matter was argued, the Court required the parties to publish a
notice in terms of Rule 16A of the Uniform Rules of Court as constitutional
issues arose. Notice of the proceedings was also specifically drawn to the
attention of the Congress of Traditional Leaders of South Africa (Contralesa),
the Human Rights Commission, the National House of Traditional Leaders and
the Provisional Houses of Traditional leaders in G auteng, Limpopo and
Mpumalanga. The Human Rights Commission and Contr alesa were admitted as

13 Exhibit A (pp 1 -206) also contains the pleadings with various attachments. Exhibit B co ntains pp 207 – 402;
Exhibit C contains pp 403 -599 and Exhibit D contains pp 600 to 849.
14 This approach accords with the power of this Court to receive hearsay evidence in terms of s 21 of the Land
Court Act 6 of 2023, specifically section 21(2)(a). Sec tion 21, titled ‘Admissibility of Evidence’ reads:
(1) The Court may, in the case of claims under the Restitution of Land Rights Act admit evidence,
including oral evidence, which it considers relevant and cogent to the matter being heard by it, whether
or no t such evidence would be admissible in any other court of law.
(2) Without derogating from the generality of subsection (1), it is competent for any party before the Court
to adduce
(a) Hearsay evidence regarding the circumstances surrounding the dispossession of a land right or
rights and the rules governing the allocation and occupation of land within a claimant community
at the time of such dispossession; and
(b) Expert evidence regarding the historical and anthropological facts relevant to any particular land
claim.’
9
amicus curiae and made submissions. The Court appreciates and is grateful for
their assistance.

[15] At this stage of the proceedings, the Court is required to deal with three
broad issues:

1. First, whether the plaintiffs were dispossessed of rights in land as a result
of past racially discriminatory laws and practices as contemplated by section 2
of the Restitution Act.15
2. Secondly, whether the plaintiffs were a community, as defined in the
Restitution Act, when they so lost their rights in land.16
3. Thirdly, the status and constitutional validity of the Proclamations , and
whether they present any impediment to the plaintiffs’ claims.

[16] By agreement between the parties, t he question of remedy was separated
for later decision in Part B. The Court confirmed the separation17 in
circumstances where the parties agreed that any appeal process would only be
pursued after the Court had decided Part B, should the plaintiffs succeed.
Specifically, whethe r the properties should be restored to the plaintiffs or other

15 Section 2(1) of the Restitution Act provides that a person shall be entitled to restitution of a right in land if (a)
he or she is a person dispossessed of a right in land after 19 June 1913 as a result of racially discriminatory laws
or practices; or (b … ; (c) … ; (d) it is a community or part of a community dispossessed of a right in land after
19 June 1913, as a result of past discriminatory laws or practices; and (e) a claim for restitution is lodged not
later than 31 December 1998.
16 Under section 1 of the Restitution Act, a community is defined to mean: ‘any group of persons whose rights in
land are derived from shared rules determining access to land held in common by such group, and includes part
of any such group.’ The locus clas sicus on what constitutes a community is In re Kranspoort Community
2000(2) SA 124 (LCC) affirmed in Goedgelegen , above n 4 para 39 where the Constitutional Court held, per
Moseneke DCJ: ‘I agree with Dodson J that in deciding whether a community exists a t the time of the claim
there must be: (a) a sufficiently cohesive group of persons’ to show that there is a community or a part of a
community, regard being had to the nature and likely impact of the original dispossession on the group; and (b)
some elem ent of commonality between the claiming community and the community as it was at the point of
dispossession.’
17 Unusually, this was a case where fairness required that the separation be finally confirmed only after hearing
evidence and argument .
10
equita ble redress should be ordered. The plaintiffs seek the restoration of the
properties , save for Portion A18 in respect of which they seek compensation.

[17] Various issues that arise in this c ase have been dealt with in other cases,
either directly or indirectly. In the result, much can be dealt with on precedent,
or can at least meaningfully be guided by useful accounts of South Africa’s land
history and its impact on land rights traversed in Constitutional Court decisions
such as Goedgelegen , Tongoane19 and DVB Behuising.20 There are, however,
new issues that arise for consideration.

[18] First, the plaintiffs contend that they remained a community as defined
by the Restitution Act throughout the period of their occupation of the
properties and after 1913 notwithstanding their status as labour tenants , which
ensued for a substantial period. There is no real dispute that the plaintiffs
continued to identify as a traditional co mmunity throughout this period,21 and
the evidence establishes clearly that that the plaintiff communities continue to
exist today. The heart of the enquiry, however, is whether the occupa tional
rights in the land were derived from shared rules determining access to land
held in common during that period .22 Against this background, the plaintiffs,
supported by the Human Rights Commission, urge this Court to distinguish
their case from Goedg elegen, which contains a dictum which landowners, or
others seeking to resist restitution claims , frequently rely on when labour
tenancy arrangements are in issue in community restitution claims . The dictum

18 Measuring 207 9 morgen and 440 square roods. During the proceedings, this portion was referred to as now
comprising Portion 1. However, the precise extent of Portion 1 is not clear including its relation to a portion now
referred to as Remaining Extent of P ortion 1.
19 Tongoane and Others v National Minister for Agriculture and Land Affairs and Others [2010] ZACC 10;
2010 (6) SA 214 (CC); 2010 (8) BCLR 741 (CC) ( Tongoane ).
20 Western Cape Provincial Government and others In re: DVB Behuising (Pty) Ltd v North West Provincial
Government and another [2009] ZACC 2; 2000(4) BCLR 347; 2001(1) SA 500 (CC) ( DVB Behuising ).
21 In this regard, it may be noted that while ‘bonds of custom, culture and hierarchical loyalty’ may help to bring
a group into the definition of community, there is no requirement that the group concerned must demonstrate an
accepted tribal identity and hi erarchy. See Goedgelegen above n 4 para 40. Moreover, there is ‘a low threshold
as to what constitutes a ‘community’ or any ‘part of a community’. See Goedgelegen para 41.
22Goedgelegen above n 4 para 35.
11
holds, in effect , that labour t enancy rights are individually rather than
communally held.23

[19] In Goedgelegen, the Constitutional Court concluded that the claimants
were not a community as defined in the Restitut ion Act, but the claimants were
nonetheless successful, having also sought relief as individual claimants. In this
case, the plaintiffs seek relief only as communities. According to the Mokgoko,
they are thereby non -suited.

[20] Secondly, the plaintiffs contend that they were dispossessed of rights in
land in circumstances where t hey sought to buy back their land under common
law, to no avail. In the case of the Maubane, they succeeded in doing so under a
trust arrangement, in respect of a portion referred to as the Remaining Extent of
Zandfontein, ultimately again to lose the property when sold in execution. In
Ndebele -Ndzundza,24 the SCA left open the question whether racial legislation
and practices that precluded sales to black communities amounted to a
constructive dispossession.25

[21] Thirdly, the case brings into focus the impact on rights in land when land
occupied by traditional communities was transferred to the Trust following the
enactment of the 1936 Act, and thereafter under Bophuthatswana legislation
dealing with the control and administration of land .

[22] Finally, the Court is asked to consider whether the Proclamations remain
in force and are constitutionally valid , in circumstances where, it is contended,
they deprived the plaintiffs of the power to manage and control the properties
under customary law and conferred such powers on the Mokgoko without

23 Para 46 quoted in full below para 76 .
24 Prinsloo and another v Ndebele -Ndundza Community and others 2005(6) SA 144 (SCA) ( Ndebele -Ndundza ).
25 Para 49.
12
consultation with the plaintiffs and without their consent. In Mahonisi , this
Court held that a process of coerced placement of communal land under the
territorial jurisdiction of another traditional community resulted in a deprivation
of rights in land as a result of discriminatory laws and practices under the
Restitution Act.26 The status and constitutional validity of the relevant
Proclamations was not, however, in issue.

[23] Before turning to the se issues, the relevant background facts are
recounted , against the backdrop of the past laws and practices in place at
relevant times and, where of assistance to understand the legislative context,
extracts from the above mentioned Constitutional Court decisions.


Original occ upation of the properties
[24] The Maubane and the Maloka are part of the broad er Bakgatla Ba Mocha
community. Culturally, the Bakgatla Ba Mocha are rainmakers, a strong cultural
tradition that is deeply connected to the land. The plaintiffs – both of whom
descend from their common ancestor, Matla isane, hail from a place cal led Ube
in current day Tshwane. During the 19th century, under th en Regent Phopholo
Maloka,27 they embarked on an arduous journey to evade white settlers wh o
were looking for free labour. They initially went to Mphe -Batho in
Hammanskraal, but left when they heard whit e settlers were pursuing them.
During their journey, p arts of the community scattered, and the Maubane an d
the Maloka separated, but the claimants ultimately landed up, respectively, on
Zandfontein and Bultfontein.


26 Mahonisi Royal Family and Community and Others v Minister Of Rural Development and Land Reform and
Others [2023] ZALCC 32 ( Mahonisi ) para 169.
27 Regent Phopholo Maloka was Regent for the Maubane heir apparent Prince Moepi, the son of the Chief
Gobane. He died in 1894.
13
[25] When they arrived on these properties, there we re no other communities
living there , the properties had not been subject to common law titling and
white settlers had not yet arrived. The Maubane and the Maloka lived on the
properties exercising land rights over the properties under customary law.
According to Mr Maloka, his ancestors settle d in Mmametl hake next to a
mountain known as Mashiya Namane, chosen for its strategic location. The
Maubane settled on Phake, although part of their community resided nearby at a
place called Marapyane returning to Phake only in the early 20th century after
the arrival of white settlers . The dates of the arrival of the Maubane and Maloka
on the properties are not clear. A ccording to the Commission, relying on
documentary records, put in evidence, the Maubane had arrived on Zandfontein
by the latest 187 3.28 According to Mr Maloka, the Maloka arrived on
Bultfontein in the 1850s. Mr Kgafela sought to dispute their historical
occupation of the properties , but his knowledge self -avowedly post -dated 1923
and his version was not put to the plaintiffs’ witnesses, whose testimony,
through Mr Mauba ne and Mr Maloka, was credible. Moreover, documentary
evidence obtained through the Commission’s investigations supports the
plaintiffs’ version of their prior occupation .

Pre-1913 titling of the properties and labour tenancy
[26] Both farms were subsequently transferred by government grant into
registered common law title in the latter part of the 19th century : Bultfontein
was transferred on 23 January 1862 to a Mr HP van der Walt and Zandfontein
was transferred on 22 August 1876 to a Mr APJ van der Walt .

[27] The evidence shows that prior to 1913, both the Maubane and the Maloka
were living on Zandfontein and Bul tfontein as labour tenants, at an early stage

28 Exhibit D p 670.
14
in the case of the Maubane,29 and in the case of the Maloka, by 1904.30
According to Mr Maubane, the Maubane were required to work the land for
three months without pay as a form of rent for their tenancy. The Maloka appear
also to have been required to work for two to three months per year. The
Maubane and the Maloka continued to live as traditional communities under
their respective Chiefs . After Chief Mo epi died, the Maubane were ruled by
Chief Al fred Rathlah ane Maubane . Chief Sekepe Thlame Maloka was the Chief
in Mmametlhake (Bultfontein) from 1894 -1918. He was succeeded by his son
Richard Phopola Maloka who ruled unt il 1951. The evidence s hows that the
Maloka’s relationship as labour tenants with the white owners was negotiated
and mediated through their Chiefs and , while the landowner determined what
land could be used for each household for residential and ploughing purposes,
land use remained subject to a n underlying process of shared rules drawn from
their customary practices at least in respect of communal grazing land.

[28] This is a case where both the Maub ane and the Maloka had, prior to 1913,
lost the full exercise of their customary law land rights through titling and
becoming labour tenants.31 As the land histories were narrated by the plaintiffs’
witnesses, Mr Maloka and Mr Maubane, the pain that flows from the
Constitution’s denial of pre -1913 restitution of customary land rights’ clai ms
was palpable. However, as the Constitutional Court held in Richtersveld :32
‘. . . This does not mean that regard may not be had to racially discriminatory laws and
practices that were in existence or took place before that date. Regard may indeed be had to
them if the purpose is to throw light on the nature of a dispossession that took place the reafter

29 According to Mr Maubane , Mr AJP van der Walt took occupation of the farm at an early stage and shortly
thereafter his ancestors became labour tenants on the property.
30 According to Mr Maloka, his ancestors exercised customary law ownership over the farm Bultfontein until the
occupation of the farm by Mr Bodenstein in 1904. At the time, the Maloka Community was led by Skep
Maloka, the eldest son of King Phopolo Maloka. It was when Mr Bodenstein took occupation of farm
Bultfontein that his ancestors were turned into labour ten ants.
31 Goedgelegen above n 4 para 6 onwards on facts and paras 20 to 22. Compare Ndebele -Ndundza above n 23.
32 Richtersveld above n 8 para 40.
15
or to show that when it so took place it was the result of racially discriminatory laws or
practices that were still operative at the time of the dispossession.’
[29] This case requires such a holistic view in circumstances where to this day,
and despit e suffering the relentless impact of well over a century of land
injustice, the Maubane and the Maloka still live on the properties they occupied
before titling, again under customary law.

The 1913 Act , the 1936 Act and attempts to purchase the properties

[30] The primary impact of the enactment of the 1913 Act for the Maubane
and the Maloka, according to the evidence, was its general proscription against
the ownership by black persons of land outside scheduled areas.33 The claimed
properties were not listed in the Schedule to the 1913 Land Act.
[31] That proscription had its origins in pre-1913 practice and history. As the
Constitutional Court explained in Tongoane (footnotes omitted) :34
‘[10] Until 1905 the practice in the former Transvaal or Zuid -Afrikaansche Republic
was that ownership of land could not be registered in the name of a ‘native’. This was
justified on the basis of two instruments, namely, the V olksraad Resolution of 14 August 1884
and art 13 of the Pretoria Convention, 1881. The latter provided that:

33 Section 1 provided, in relevant part:
(1) From and after the commencement of this Act, land outside the scheduled native areas shall, until
parliament, acting upon the report of the commission appointed under this Act, shall have made other
provision, be subject to the following provisions, that is to say: -
Except with the approval of the Governor -General –
(a) A native shall not enter into any agreement or transaction for the purchase, hire, or other
acquisition from a person other than a native, of any such land or of any right thereto, interest
therein, or servitude thereover; and
(b) A person other than a nativ e shall not enter into any agreement or transaction for the
purchase, hire, or other acquisition from a native of any such land or of any right thereto,
interest therein, or servitude thereover.
(2) From and after the commencement of this Act, no person other than a native shall purchase, hire or in
any other manner whatever acquire any land in a scheduled native area or enter into any agreement or
transaction for the purchase, hire or other acquisition, direct or indirect, of any such land or of any right
thereto or interest therein or servitude thereover, except with the approval of the Governor -General.’
34 Above n 19 p ara 10.
16
‘Natives will be allowed to acquire land, but the grant or transfer of such land will in
every case be made to and registered in the name of the Native Location Commission
hereinafter mentioned, in trust for such natives’.
[11] However, in 1905, and following the decision in Tsewu v Registrar of Deeds which held
that neither of these instruments had the force of law and that title could be registered in the
names of ‘natives’, African people were able to purchase land from white farmers. . . . . All
this changed i n June 1913, when the [1913 Act] was enacted.’
[12] The [1913 Act] and the [1936 Act] were the key statutes that determined wh ere African
people could live. The former conta ined a schedule which set out areas in which only African
people could purchase, hire or occupy land. In terms of s 2(1), the sale of land between
whites and African people in respect of land outside of the scheduled areas referred to in the
Act was prohib ited. The effect of this legislation was to preclude African people from
purchasing land in most of South Africa.’
[32] The proscription against land purchase did not deter the plaintiffs , who
repeatedly sought to buy back portions of their historical land. The need to
regain control over their land was rendered more acute considering the
insecurity of their tenure during the entire period of their labour tenancy, and
their vulnerability to eviction. However, t he Maubane and Maloka could only
acquire the land in the exceptional circumstance where the Governor General
approved sa les of land to African people. Moreover, as the Constitutional Court
explained in Tongoane :35
‘African people purchasing land pursuant to such approval had to accept, however,
that land would not be registered in their names, but would be held in trust on their behalf by
the Minister of Native Affairs who would recognise their permanent rights of u se and
occupation of the land, consistent with the position of an owner.’
[33] The Maubane spent huge sums of money pursuing this route, selling their
cattle , goats and sheep and their produce of mealies to purchase Zandfontein .

35 Above n 19 para 13.
17
These efforts continued over three decades . The information to hand was
compiled by the Commission’s researcher Mr Magwabane.

[34] Zandfontein underwent several changes in owne rship after its initial
titling in 1876. In 1925, the farm was co -owned by Mr Frederick Christofell
Eloff and Mr Dirk Postina Eloff. Mr Dirk Eloff owned Portion A of the farm,
which measured 1988 morgen and 431 square rood s, under d eed number 9 […].
Meanwhile, Mr Frederick Eloff owned the Remaining Extent of the farm, also
measuring 1988 morgen and 431 sq uare ro ods, under deed number 9 […].36

[35] Mr Maubane testified that the Maubane bough t back the whole of
Zandfontein.37 The a rchival documents in evidence before the Court confirm
only that they did so , in 1926 , in respect of the Remaining Extent. The
documents record that the Remaining Extent, Zandfontein , was transferred into
the name of the ‘Minister of Native Affairs in trust for the Bakgatla Ba Mocha
tribe of Nativ es under Chief Alfred Maubane.’38 This accords with Mr
Maubane’s evidence that his ancestors were never given a title deed for the
purchase of the property which was held in trust. Accord ing to the documentary
evidence , a significant portion of the purchase price of £6500 was paid in the
form of a deposit (at least £27 50) and the remainder subject to a mortgage bond
of £3750 at 7.5% interest .39 The documents record that the Maubane made
payments totalling £9000 be tween 1925 and 1931, facilitated by their agent, Mr
van Citert.40


36 Exhibit D p 665 -7.
37 The property appears originally to have measured 3977 morgen and 262 roods. Ibid.
38 Exhibit D p 666.
39 The loan and mortgage arrangements can best be gleaned from Exhibit D p 687 and 696 .
40 Exhibit D p 676 and p 723.
18
[36] The document s record that the Maubane had trouble settling the bond in
full and that a second bond of £4000 was secured.41 However, in 1934, the
bondholders foreclosed on the bond and consequently, the Maubane lost the
land again when it was sold in execution to the bondholder for £2350.42

[37] Over t his period, the Mauba ne were vulnerable to eviction. Mr
Maubane testified that in 1923, his ancestors were given a notice to vacate. A
letter dated 5 October 192343 confirms this occurred in circumstances where the
lessee of the farm, a Mr G ilfilla n, sought to remove some people living on
Zandfontein and their leaders . Some of the Maubane , including their Chief,
were required to leave Zandfontein in 1934 and moved to Bultfontein,44 only
thereafter to return to Zandfontein.

[38] In 1936, the U nion Government introduced the 1936 Act, which
formalised the separ ation of white and black areas. As explained in Tongoane ”45
‘[14] [The 1936 Act] was enacted in 1936 to make provision for the establishment of
the [Trust] and the release of more land for occupation by African people. In terms of s 6 of
this Act, all land – “which [was] reserved or set asid e for the occupation of natives” and “land
within the scheduled native areas, and … within the released areas” vested in the Trust.
However, there was a limit on the amount of land that could be acquired by the Trust, and by
implication, land that could be occupied by African people. The affairs of the Trust were
administered by the Governor -General in his capacity as the Trustee who, in turn, could
delegate his powers and functions to the Minister of Native Affairs.
[15] The lan d that vested in the Trust was “ held for the exclusive use a nd benefit of natives.”
The Trustee had the power to “ grant, sell, lease or otherwi se dispose of land … to natives”
and “on such conditions as he [deemed] fit.” Further, the Governor -General had the power to
make re gulations, among other things, “ prescribing the conditions upon which natives may

41 Exhibit D p 723.
42 Exhibit D p 723.
43 Exhibit D p 670.
44 Exhibit D p 685.
45 Above n 19.
19
purchase, hire o r occupy land held by the Trust” and “ providing for the allo cation of land
held by the Trust for the purposes of residence, cultiv ation, pasturage and commonage.” ’
[39] Zandfontein is within the released area describe d in Schedule 1 of the
1936 Act.46 According to documentary evidence, in 1938, the Native
Commissioner of Hammanskraal indicated that the Union Government intended
to purchase the farm from the estate of the late Mr De Jongh and stated that if
the Maubane Community paid sufficient money there was a possibility to allow
them to re -purchase the farm, a lternatively it could be lease d to them. Acting on
this belie f, the Maubane paid the Commissioner of Native Affairs a further sum
of £4000 towards the purchase of Zandfontein.47 However, the farm was not
sold to the Maubane but on 30 September 1941, Remaini ng Extent was
transfer red to Mr Dirk Cloete Jackson. In 1946, Mr Jackson refused to sell the
Remaining Extent to the Maubane. The documentary evidence from that time
record that in 1946, the Maubane consisted of 500 people residing on
Zandfontein of whom h alf live entirely on the land and look ed to it for
subsistence. Nonetheless, their tenure remained insecure.48

[40] On 21 May 1947, Mr D Malan, who at the time was a trustee of the farm
Zandfo ntein, wrote to the Minister for Native Affairs requesting that farm
Zandfontein be expropriated from Mr Jackson in f avour of the Maubane
Community. He believed that expropriation was the best course of action
because:
‘…the position of the Tribe as an entity living p recariously and dependent on the good wishes
of the owne r should not be tolerated, and it would certainly not be to the public benefit that
such a position should be allowed to continue.’49

46 See Part 3, Area No 22, District of Pretoria and Waterberg. This is confirmed in c orrespondence of 21 May
1947 Exhibit D p 676.
47 Exhibit D p 677.
48 Ibid.
49 Exhibit D p 678.
20
[41] The Minister of Native Affairs did not act in accordance with Mr Malan’s
plea and recommendation. In 1948, Mr Jackson sold both Portion A and the
Remaining Extent of Zandfontein to the Trust apparent ly for a sum of some
£43 000.00.50 On 30 July 1948, Zandfontein was registered in the Trust’s
name .51

[42] In a letter dated 31 October 1950, Mr GH van der Aardweg, the
Agricultural O fficer appointed by the Trust, recorded that in 1948 when the
Trust took over Remaining Extent Zandfontein, he found 81 families resident
there who he registered as ‘squatters ’.52 Upon taking control of farm
Zandfontein, Mr Aardweg informed the Maubane to fulfil their remaining
obligations to Mr Jackson and to reduce their stock to five herd large stock by
31 October 1948.53 On 15 November 1948, three members of the Maubane had
not complied with Mr Aardweg’s instructions and were given notices to vacate
the land within three months.54

[43] Any hopes that th e Maubane would gain common law owner ship of the
Remaining Extent , Zandfontein and thereby restore their legal control over
some of their historical land, were , by 1948, completely destroyed.

[44] Like the Maubane, the Maloka sought to buy back land on Bultfont ein,
but they did not succeed. Mr Maloka testified that in 1922 his ancestors ,
through R egent Phopholo Maloka attempted to purchase a portion of
Zandfontein but that attempt was foiled because they were prohibited from
owning land. In his testimony, Mr Maloka did not traverse the amounts paid.
However, the documentary evidence records the amount s as £668. There is no

50 Exhibit D p 672.
51 Exhibit D p 655 -7, Title Deed 24052/1948 and p 667.
52 Exhibit D p 681 .
53 Exhibit D p 686.
54 Ibid, p 686.
21
dispute that they were cheated of the monies that they paid, which it seems they
paid to both a Mr van der Walt (£200) and Mr van Citter t (£468), and without
remedy.55 According to the documentary evidence, t he intended portion 56 was
eventually sold at public auction from the insolvent estate of Van Cittert for
£1700, whereafter the new owner, a Mr Davidowits ordered the Maloka to leave
the farm.57 According to Mr Maloka, the Maloka never left Bultfontein. They
remained on the farm as labour tenants of the various land -owners, until
Bultfontein, like Zandfontein, was transferred into the Trust.

[45] In 1923, however, the Mokgoko arrived on Bultfontein , having been
coerc ed by the government to leave their own place of residence, known as
Elsjeskraal . The Maloka testified about how, under customary law, this mean t
that the Makgoko wer e subject to their leadership . This was narrated in part
through vernacular idiom, explained in Court to mean that when an outsider
comes into the household of another, such people have no right to extend their
area, except with the permission of that house hold. Thus if you migrate to a
place you are sub ject to the rules of that place: one does not take over the home
of another. I accept that this is what happened. The Maloka’s difficulty,
however, is that there was no clear evidence about what part s of Bult fontein the
Mokgoko or Maloka then occupied, and no evidence as to how their arrival
affected the specific area then occupied by the Maloka, w ho, it was common
cause, w ere by then living as labour tenants . It is probable that the Maloka’s
interests as labour tenants were adversely impacted by their arrival, but t he
Court is not in a position to make findings on the plaintiffs’ evidence about the
extent of the impact or what part of Bultfontein was in issue.


55 Exhibit C p 518 and 342.
56 The intended portion appears to have been a portion to be subdivided, which became Portion D. The
subdivision only was effected only in 1927. Exhibit C p 518.
57 Exhibit C p 324.
22
[46] According to Mr Kgafela, one of the reason s that the Mokgoko came to
Bultfontein is that they had learnt through the grapevine that land was being
sold which they bought through selling cattle . The Mokgoko also refer to
Bultfontein as Mmametlhake but, according to Mr Kgafela, the name refers not
to suffering but a plant called Matlha ke, which they found on their arrival.
According to the documentary evidence, the Mokgoko managed , in 1923, to
buy Portion A of Bultfontein (then referred to as Bultfontein R472 ), which
measured two-thousand and seventy -nine (2079 ) morgen four hundred and forty
(440) square roods. For reasons already canvassed, the property was not
however transferred into their name, but into the name of the G overnment of the
Union of South Africa.58

[47] The history is best evidenced in Grant 15195/1944,59 which records that
Portion A vested in the Trust under and in terms of section 6(1) of the 1936 Act,
but that the Trust then donated the property in favour of the Mokgoko,60 a
donation the Mokgoko accepted on 23 September 1943.61 Consequently, the
Minister of Native Affairs, administering the Trust and acting under powers
delegated to him by the Governor -General, granted, ceded and transferred
Portion A of Bultfontein 472 in favour of the Minister of Native Af fairs in trust
for the Mokgoko. Princess Mokgoko sought in her evidence to suggest that
more of Bultfontein was purchased than the 2079 morgen, but th at is not
confirmed by the documentary evidence , including the relevant tribal resolution .
Mr Kgafela did not claim personal knowledge of the extent purchased and
deferred to the records.


58 The document is titled South African Native Trust Grant No 1 5195/1944 (Grant 15195/1944) Record p 140.
Grant 15195/1944 records that Portion A of Bultfontein 472 was transferred to the Government of the Union of
South Africa by Deed of Transfer No 5484/1 923 dated 15 June 1923.
59 Ibid
60 Referred to in Grant 15195/1944 as the ‘Bakgatla -ba-Makau Tribe of natives under Chief Saul Mokhoko’.
61 The acceptance of the donation is recorded in a tribal resolution: Exhibit A p 146.
23
[48] The various remaining portions of Bultfontein appear to have been
transferred to the Trust from private owners at various points between 1938 and
1939.62
1948 onwards, the Trust, the 1958 Proclamation and the ‘betterment ’
scheme
[49] Accordingly, by 1948, both Zandfontein and Bultfontein were registered
in the name of the Trust ( save for Portion A, measuring 2079 morgen and 440
square roods, which was held by the Minister of Native Affairs in trust for the
Mokgoko ).

[50] The registration of the properties in Trust must be viewed as part of the
process of consolidation of the policy of residential racial segregation that had
long been pursued under the colonial g overnment. Viewed nationally, it resulted
in 13% of South Africa’s land being set as ide for the African majority. From
1948, that policy was to be cemented by the apartheid government, by creating
separate ‘countries’ for Africans within South Africa. In DVB Behuising, the
Constitutional Court describes the history in these terms (footnotes omitted):63
‘[41] Residential segregation was the cornerstone of the apartheid policy. This policy
was aimed at creating separate 'countries' for Africans within South Africa. The Native Land
Act 27 of 1913 and the Native Trust and Land Act 18 of 1936 together set apart 13% of
South Africa's land for occupation by the African majority. The other races were to occupy
the remaining 87% of the land. Africans were precluded from owning and occupying land
outside the areas reserved for them by these statutes. The Native Administration Act 38 of
1927 appointed the Governor -General (later referred to as the State President) as 'supreme
chief' of all Africans. It gave him power t o govern Africans by proclamation. The powers
given to him were virtually absolute. He could order the removal of an entire African
community from one place to another. … These removals resulted in untold suffering. This
geographical plan of segregation wa s described as forming part of 'a colossal social
experiment and a long term policy'.

62 Record p 369.
63 Above n 19 .
24
[42] The areas reserved for Africans later formed the basis for the establishment of
ethnically based homelands. The Promotion of Bantu Self -Government Act 46 of 1959
divided Africans into ten 'national units' on the basis of their language and ethnicity. These
were North Sotho, South Sotho, Tswana, Zulu, Swazi, Xhosa (arbitrarily divided into two
groups), Tsonga, Venda, and Ndebele. On the basis of these 'national units' ten homelands
were established, namely Lebowa, Qwaqwa, Bophuthatswana, KwaZulu, KaNgwane, Ciskei,
Transkei, Gazankulu, Venda and KwaNdebele. The Black Homelands Citizenship Act 26 of
1970 sought to assign to each African citizenship of one or other of thes e homelands. It is in
these homelands that Africans were required to exercise their political, economic and social
rights.’

[51] To return to the claimed properties, by 1948, the whites had left both
Zandfontein and Bultfontein . The Maubane and Maloka , no longer labour
tenants, continued to live there as traditional communities under the Trust
regime . The Mokgoko remained there too, probably on Portion A , which was
held by the Minister of Native Affairs in trust for them , or a part of it . In these
circumsta nces, the conditions under which the Maubane and Maloka c ould
lawfully purchase, hire or occupy the land were dealt with in Regulations made
under the 1936 Act. In rural areas, and from 1969, the Bantu Areas Land
Regulations applied.64 Those Regulations recognised two forms of tenure,
quitrent and permissions to occupy.

[52] The evidence was sparse as to how land use was in fact regulated on the
properties during thi s period . For present purposes, howeve r, what is significant
is that while the Regulations imposed intrusive controls over the use of land,
they also recognised the application of cu stomary law in these areas and a role
for traditional authorities in land allocation . This appears from an analysis of the

64 Proclamation R188, GG2486, 11 July 1969, made under s 25(1) of the 1927 Act read with s 21(1) and 48(1)
of the 1936 Act. In the former Transvaal these Regulations were preceded by other regulations such as
Proclamation 13 of 1945.
25
Regulations, the import o f which is summarised in Tongoane, as follows
(footnotes omitted):65

‘[20] These regulations recognised the application of indigenous law in the areas
reserved for African people. This is apparent from provisions of the regulations dealing with
succession to land. Succession to land allotted under the regulations was governed by
indigenous law. In addition, tribal authorities or, where they did not exist, traditional leaders
played a role in the allocation of arable and residential allotments. To occupy land in these
areas, African people required the permission of the Bantu Affairs Commissioner who would
grant permission after consultation with the tribal authority having jurisdiction or a traditional
leader, as the case may be.

[21] What emerges from these regulations therefore is that (a) the tenure in land which was
subject to the provisions of the [1913 Act] and [the 1936 Act] and which was held by African
people was precarious and legally insecure; (b) indigenous law governed succession to land
in these areas, and the application of indigenous law in relation to land in these areas subject
to regulations was recognised; and (c) tribal authorities and traditional leaders played a role in
the allotment of land in these areas.’

[53] On an evalu ation of the evidence, in 1948, the Mokgoko asserted no
traditional authority in respect of either the Maubane or the Maloka, and it can
be accepted that at least outside of Portion A, that authority was exercised under
their own shared rules determining access to lan d under customary law and
through their own traditional leaders .

[54] The processes that then ensued on the properties , however, bring into
focus the impact of the 1927 Act and the 1951 Act, which conferred powers on
the Governor -General to establish tribes, tribal authorities and tribal areas as the
basic units of administration of African people across the areas designated for
their residence. In Tongoane, the Constitutional Court references features of

65 Above n 19 .
26
these laws in context of the broader processes of forced removals and residential
segregation that were happening across South Africa. In doing so, and
importantly for this case, the Court alludes to how the geographical areas of
tribal administration that were created through these processes retain
significance today,66 an issue I return to below when dealing with the status and
constitutional validity of the Proclamations.
‘[23] The [1927 Act] made the Governor -General (later the State President) the
“supreme chief of all Natives in the Provinces of Natal, Transvaal and Orange Free State”
(later extended to the Cape Province), and vested in him the legislative, executive and judicial
authority over African people. Specifically, it gave him the power to govern African people
by proclamation, to establish tribes, and to “order the removal of any tribe or portion thereof
or any Native from any place to any other place”. It dealt with, among other matters, the
organisation and control of African people, land administration and tenure, and the
establishment of separate courts for African people which had the authority to apply
indigenous law. It proclaimed the “Code of Zu lu Law” to be the “Law for Blacks in Natal”.
[24] The [1951 Act] gave the State President the authority to establish “with due regard
to native law and custom” tribal authorities for African “tribes” as the basic unit of
administration in the areas to whic h the provisions of CLARA apply. These tribal authorities
had the power to “advise and assist the Government and any territorial or regional authority . .
. in connection with matters relating to . . . [among other things] the development and
improvement o f any land within [their areas of jurisdiction]”. And they were required to
exercise their powers and perform their functions “with due regard to the rules, if any,
applicable in the case of similar bodies in terms of the native laws or customs of the resp ective
tribes or communities in respect of which [they have been] established”. It is these tribal
authorities that have now been transformed into traditional councils for the purposes of section
28(4) of the Traditional Leadership and Governance Framework Act, 2003 (the Traditional
Leadership Act). And in terms of section 21 of CLARA, these t raditional councils may
exercise powers and perform functions relating to the administration of communal land.

66 In Tongoane, above n 19, the Constitutional Court was considering the constitutional validity of the
Communal Land Rights Act 11 of 2004, referred to as CLARA. The Court held CLARA to be inconsistent with
the Constitution and inval id on procedural grounds.
27
[25] Under apartheid, these steps were a necessary prelude to the assignment of
African people to ethnically -based homelands. This commenced with the creation of
“legislative assemblies” which would mature into “self -governing territories” and ultimately
into “independent states”. According to this plan, there would be no African people in South
Africa, as all would assume citizenship of one or ot her of the newly created homelands,
where they could enjoy social, economic and political rights. Section 5(1)(b) of the Black
Administration Act became the most powerful tool to effect the removal of African people
from “white” South Africa into areas re served for them under this Act and the Development
Trust and Land Act. And as we noted in DVB Behuising , “[t]hese removals resulted in untold
suffering.” The forced removals of African people from the land which they occupied to the
limited amount of land reserved for them by the apartheid state resulted in the majority of
African people being dispossessed of their land. It also left a majority of them without legally
secure tenure in land. ’
[55] This provides the background against which the impugned Proclamations
may be viewed. The 1958 Proclamation was made by the Governor -General , in
his role as ‘Supreme Chief’ . It was made under section 5(1)(a) of the 1927
Act67 and section s 2 and 3 of the 19 51 Act.68 Under the 1927 Act, the Governor

67 Section 5(1) provided:
The Governor -General may –
(a) Define the boundaries of the area of any tribe or of a location, and from time to time alter the
same, and may divide existing tribes into one or more parts or amalgamate tribes or parts of tribes
into one tribe, or constitute a new tribe, as necessity or the good government of the Natives may in
his opinion require;
(b) Whenever he deems it expedient in the general public interest, order the removal of any tribe or
portion thereof or any Native from any pl ace to any other place within the Union upon such
conditions as he may determine: Provided that in the case of a tribe objecting to such removal, no
such order shall be given unless a resolution approving of the removal has been adopted by both
Houses of Parliament.
68 Section 2 provided:
(1) The Governor -General may –
(a) With due regard to native law and custom and after consultation with every tribe and community
concerned, establish in respect of any native tribe or community, or in respect of any two or more
such tribes or communities or one or more such tribes and one or more such communities jointly, a
Bantu tribal authority;
(b) In respect of any two or more areas for which tribal authorities have been established, establish a
Bantu regional authority; and
(c) In respect of any two or more areas for which regional authoritie s have been established, establish
a Bantu territorial authority.
(2) A tribal authority shall be established in respect of the area assigned to the chief or headman of the tribe
or community in question, or, where such authority is established in respect of two or more tribes or
communities or one or more tribes and one or more communities jointly, in respect of every area
assigned to a chief or headman of any such tribe or community.
28
General defined the area of the Bakgatla ba Mmakau Tribe (ie the Mokgoko) to
be ‘the area of Hammanskraal Warmbaths District consisting of Portion A of the
farm Bultfontei n No 242 as it was then known. Under the 1951 Act, the
Governor -General establishe d a tribal authority for the Bak gatla ba Mmakau
tribe for the same area to be known as the Bakgatla Ba Mmakau Tribal
Authority, under Chief Ellence Mapolo Mokgoko.69 It was to be some thirty
years later, in 1986 and 1990, that the Mokgoko’s jurisdiction was extended
over the remainder of Bultfontein and into Zandfontein , under the 1986 and
1990 Proclamations.

[56] As to the intervening period , the evidence traversed land use with
reference to the impact of the ‘betterment’ scheme introduced in the area in the
1960s . This Court has previously awarded restitution of land arising from a
‘betterment’ claim.70 As noted in Dangezele, ‘betterment’ schemes were
implemented in the former ‘homeland ’ areas and as such, … the schemes o nly
applied to black persons.’ On the information before the Court in Dangezele , it
was apparent that the impact of the schemes was felt by rural black So uth

(3) The establishment of a tribal, regional or territorial authority, and the area or areas in respect of which
it has been established, and any medication of any such area, shall be made known by notice in the
Gazette.
69 Under section 3 of the 1951 Act, the Governor -General determined that the Bakgatla ba Mmakau Tribal
Authority sh all, in addition to the Chief, consist of not less than 12 and not more than 15 councillors.
70 Mazizini Community and others v Minister for Rural Development and Land Reform and others [2018]
ZALCC 5; [2018] 3 All SA 164 (LCC) at paras 243 to 245. This i ssue was briefly canvassed in Dangazele and
Others v Minister of Agriculture, Land Reform and Rural Development and Others; Mpetsheni and Others v
Minister of Agriculture, Land Reform and Rural Development and Others; Nkolisa v Minister of Agriculture,
Land Reform and Rural Development and Others [2022] ZALCC 28 ( Dangazele ). In that case, which is
ongoing, it is common cause that ‘betterment’ schemes, dispossessed persons of rights in land as a result of past
racially discriminatory laws or practices in the sense contemplated by section 2 of the Restitution Act. The Court
also noted that the Commission has settled cases on the basis that ‘betterment’ gave rise to dispossessions of
land as contemplated by section 2. See footnote 12 which reads: ‘ See fo r example the settlement described
in Gongqose and Others v Minister of Agriculture, Forestry and Others, Gongqose and S [2018] ZASCA
87; [2018] 3 All SA 307 (SCA); 2018 (5) SA 104 (SCA); 2018 (2) SACR 367 (SCA). The applicants explain
that the State settled various ‘betterment’ claims lodged in the Keiska mmahoek District of t he former Ciskei
between 2000 and 2002. This includes a claim known as the Chata claim which was referred to this Court by
way of direct access under case number LCC 154/1998.’
29
Africans in large numbers. The Court briefly explained what the schemes
entailed:71
‘Stated at a high level, the schemes entailed the proclamation or deeming of an area as
a ‘betterment’ area and the division of land into three types: residential, arable and grazing
land. Affected residents were then relocated from their previous homestead s to these
residential areas (where necessary), and arable and grazing areas in ‘betterment’ areas were
then allocated and strictly regulated.’
[57] In Dangezele, the Court recorded the following general remarks on the
evidence presented there:72
‘The applican ts explain that although ‘betterment’ was effected in the name of
conservation and agricultural development, the implementation of the schemes was at least in
some cases coerced and might better be described as forced removals. The description the
applican ts supply regarding what ensued depicts systematic control over the rural population
in a process that, at least in some cases, resulted in loss of land, productive capacity and
grazing, increased poverty and reliance on migrant labour earnings and even en vironmental
degradation. ’
[58] Those remarks resonate with the evidence in this case which shows that
de facto the Mokgoko assumed a level of control over the Maubane’s and
Maloka’s land use on the remainder of Bultfontein and Zandfontein during this
period.73 Mr Maloka was clear that Mokgoko authority was imposed without the
Maloka’s consent, and that what happened during t hat period was imposed on
them. Mr Maloka was himself not aware of the ‘betterment ’ laws, thereby
emphasising the coercion . Reference was made to an agricultural project which
only involved the Mokgoko and which took place on the part of Bultfont ein on
which the Maloka were residing: ‘in their own back yard’ .74 Mr Maloka

71 Para 17.
72 Para 18.
73 See for example p 9 of the Report of the Commission of Enquiry into the Jurisdiction of the Bakgatla Ba
Mmakau of the Bophuthatswana Government: Record p 274.
74 This appears to have been on what was then Portion D.
30
explained further that during this period, they were moved like cattle and their
graves were destroyed.

[59] According to Mr Kgafela, it was only through the ‘betterment ’ scheme
that the Mokgoko became associated with Zandfontein and it is apparent from
the evidence that it was the Mokgoko that exercised a level of control in its
implementation . Mr Kgafela explained that the scheme was applied on
Bultfontein too and entailed movin g people to demarcated places. Mr
Motshekga put it to Mr Kgafela that ‘betterment ’ was a scheme created by the
apartheid government and that Chief Mokgoko was one of the chiefs
implementing that scheme to the advan tage of the Mokgoko and the
disadvantage of the Maloka . Mr Kgafela’s response was, in effect, that that was
the law of the t ime. However, his testimony effectively corroborates the
plaintiffs’ version that historically, the Maloka were not sub ject to control by the
Mokgoko in respect of their control and administration of their land. The control
was coerced.

[60] Mr M oagi also testified about the ‘b etterment ’ scheme confirming that it
entailed the movement of people. He referred specifically to movement of
members of the Mauba ne family from Mashiya Namane to Mmametlhake.
Indeed, his testimony ultimately corroborated the pl aintiffs’ version in material
respects.75
The establishment of Bophuthatswana and the 1986 and 1990
Proclamations

[61] As the Constitutional Court explained in DVB Behuising :76

75 He confirmed that the portion o f Bult fontein known as Mashiya Namane was never Mokgoko land and that
Zandfontein is Maubane land. He also confirmed that the Maloka have always been at Bultfontein.
76 Above n 20 .
31
‘Areas which had been declared “trust land” [ie under the 1913 and 1936 Acts] and
reserved for occupation by Africans were, by the Promotion of Bantu Self -Government Act
46 of 1959, set aside as areas which would in the future be declared “independent
homelands”. In 1977 Parliament granted “independen ce” to Bophuthatswana in terms of the
Status of Bophuthatswana Act 89 of 1977.”

[62] In 1978 , Zandfontein and Bultfontein became incorporated into
Bophuthatswana under the Boph uthatswana Border Extension Act .
Notwithstanding the creation of Bophuthatswana, South African laws continued
to apply until repealed or amended.77 In 1979, and un der the Bophuthatswana
Land Control Act 39 of 1979, the Bophuthatswana legislature repealed the 1913
Act and the 1936 Act . Pursuant to section 7(2) of that Act, all released land
under the 1936 Act was ‘deemed to have been reserved for the occupation of
tribes and communities as from the date of coming into operation of [the A ct].’
There was no evidence led about any restrictions on the use of Zandfontein and
Bultfontein impos ed as a result of the provisions of that Act, or any other law,
and I accept on the evidence that the use of the properties by the Maubane and
Maloka during this period was, at least in substantial measure, under shared
rules of their traditional communiti es determining access to land under
customary law.

[63] It is against this background that the 1986 and 1990 Proclamations were
introduced unde r the 1978 Bophuthatswana Act. The Republic of
Bophuthatswana Constitution Act 18 of 1977 , as amended, repealed material
parts of the 1927 Act and the whole of the 1951 Act in that territory.78 However,

77 Under section 18 of the Bantu Homelands Constitution Act 21 of 1971, ‘… all l aws which immediately prior
to the constitution of the first executive council for an area in terms of section 5 were in force in that area or any
portion thereof, shall continue in force until repealed or amended by the competent authority.’
78 Section 98( 1) read with Schedule 7.
32
the legal force of the 1958 Proclamation was preserved in terms of section 54 of
the 1978 Bophuthatswana Act .79


[64] The 1986 and 1990 Proclamation s were made under both section 280 and
381 of the 1978 Bophuthatswana Act.


79 Section 54(3) provided:
‘Anything done in pursuance of powers conferred on the competent authority by or by virtue of any provision of
any law repealed in subsection (1) of the Constitution Act shall be deemed to have been done by the appropriate
authority in pursuance of powers conferred by virtue of or in terms of the corresponding provisions of this Act.’
80 Section 2 provided:
2. Tribes, communities and tribal areas
The President may –
(a) after consultation with the tribal authority concerned, by notice in the Gazette define the boundaries of a
tribal area and likewise from time to time redefine such boundaries and withdraw such notice.
(b) if necessary or good government so requires and after consultation with the members of the tribe or tribes or
community or communities concerned –
(i) divide any existing tribe into two or more parts or amalgamate tribes or parts of tribes or establis h a new
tribe;
(ii) compose one or more communities as a tribe.’
81 Section 3 provided:
3. Tribal authorities –
(1) For each tribe there shall be a tribal authority which, subject to the provisions of subjection (3) –
(a) in the case of a tribal area in which there exists a tribal government functioning in accordance with the law
and customs observed by that tribe, shall be that tribal government;
(b) in the case of a tribal area in which there exists a tribal authority established under a law repealed by the
Constitution Act, shall be that tribal authority; and
(c) in the case of a tribal area in which there exists no tribal government referred to in paragraph (a) and no
tribal authority referred to in paragraph (b), or a tribe which came into existenc e in terms of the provisions of
section (2)(b)(i), shall be the tribal authority constituted by the President after consultation with the members of
the tribe concerned.
(2) The President may at any time, at the request of any tribal authority or after co nsultation with the tribal
authority and members of the tribe concerned, dissolve such tribal authority and subject to the provisions of
subsection (3), constitute a new tribal authority.
(3) The chief or headman of the tribe shall ex officio be a member of the tribal authority and shall act as
chairman unless another member acts as chairman in accordance with the law and customs of the tribe
concerned: Provided that where the chief acts as chairman and is, as a result of other obligations as referred to
in section 36(4) unable to do so, his deputy, as referred to in section 36(4) shall act as chairman.
(4) Subject to the provisions of subsection (3), a tribal authority consists of –
(a) those members of the tribe who in accordance with the law and custo ms of the tribe are recognized as
councilors who, with the chief or headman constitutes the tribal government; and
(b) such other members of the tribe as the chief or headman may from time to time, with the approval of the
officiating councilors, appoint as councilors:
Provided that the total number of councilors shall not at any time exceed the number of councilors which the
President determines.
(5) The constitution of a tribal authority in terms of sub -section (1)(c) and the dissolution of a tribal
author ity and the constitution of a new tribal authority in terms of subsection (2) and the determination
of the total number of councilors in terms of the proviso to subsection (4) shall be made known by
notice in the Gazette.
(6) …
(7) …’
33
[65] The 1986 Proclamation:

1. Repealed the 1958 Proclamation
2. Defined the tribal area of ‘the Bakgatla Ba Mmakau tribe’ and its tribal
authority to consist of Bultfontein 174HR and Remainder of Zandfontein 31 JR;
3. Determined that the B akgatla ba Mmakau tribal authority shall in addition
to the Kgosi consist of not more than 15 members.


[66] The 1990 Proclamation:
1. Withdrew the 1986 Proclamation;
2. Redefined the tribal area of the Bakgatla Ba Mmakau tribe to consist of
Bultfontein 174JR and Zandfontein 31JR (the Remaining Extent and Portion 2);
3. Determined that the Bakgatla Ba Mmakau Tribal Authority shall, in
addition to the Kgosi, consist of not more than 15 councillors.

[67] The evidence was clear about the impact of the Proclam ations on land
administration. In short, decisions ab out land management and control,
including land allocation s, were made by the Mokgoko and the Maloka and the
Maubane required their consent on those matters. Before the Pro clamations,
they could manage and control the land under customary law under their own
Chiefs.

[68] There are many references in the evidence to these impacts. For example,
Mr Maubane testified that it was through the Proclamations that the Mokgoko
came to ‘administer our land’ but he testified that they believed that they owned
it. At a point he mentioned that they had ‘abolished some of their rituals’ (which
are connected to the land) and he testified that schools they had to build were
built in t he Mokgoko’s area – alluding to forced labour. Mr Maubane explained
34
further that the Mokgoko took issue with the Maubane when they sought to
allocate land to their own children saying they required their consent .

[69] Mr Maloka explained the impact in idiom s aying President Mangope
gave the Mokgoko their land: it is as if you were to take my shoe and say, wear
one shoe and then I will wear the other shoe. Mr Maloka went on to explain
that development took place on Bultfontein – referring to government office s, a
hospital and the police station. He testified about home demol ition and arrests
for trespass. At a later point, Mr Maloka recounted how, after the 1986 and
1990 Proclama tions were in place, the Mokgoko ‘had taken all the chieftaincy’,
and started to ‘even farm on the graveyard.’ On enquiry from the Court, the
impact of the Proclamations on land was described in these terms: ‘It made a
huge impact because we could not do anything without asking for permi ssion.
So, r emember back then people used to depend on livestock or cattle. So now if
there will be a limit say of nine cattle and then how is one going to survive. …
So now the cattle were taken to another camp which was far from home. It was
very diffic ult to go and fetch cattle and then after that you used to come back
and study. … So we were already oppressed whereby everything that needs to
be done you need to get permission Kgosi Mokgoko like … water you would
need permission. Opening a shop , you wou ld need a permission. And none of
the applications were approved. We needed to ask permission in our own land.
…’ These aspects were not canvassed in cross -examination.

Dispossession of rights in land as a result of past racially discriminatory
laws and practices

[70] The Restitution Act defines a ‘right in land ’ generously to mean ‘any
right in land whether registered or unregistered, and may include the interest of
a labour tenant and sharecropper, a customary law interest, the interest of a
35
beneficiary under a trust arrangement and beneficial occupation for a
continuous p eriod of not less than 10 years prior to the dispossession in
question.’

[71] In turn, the concept of ‘dispossession’ is not to be understood technically.
It is a broad concept that is to be determined adopting a substantive approach
that is mindful of the ‘amplitude’ of the definition of a right in land .82 Physical
dispossession is not required.83 Nor is a forced removal.84

[72] The Constitutional Court gave content to the causation requirement
imposed by the term ‘as a result of’ in Goedgelegen , holding:85
‘. . . [T]he term ‘as a result of’ in the context of the Restitution Act is intended to be less
restrictive [than the civil law sense] and should be interpreted to mean no more than ‘as a
consequence of’ and not ‘solely as a consequence of’. It is fair to add th at, on this
construction, the consequence should not be remote, which means that there should be a
reasonable connection between the discriminatory laws and practices of the state, on the one
hand, and the dispossession, on the other. For that determinatio n, a context -sensitive appraisal
of all relevant factors should be embarked upon.’

[73] Importantly, moreover, in view of the nature of racist practices and
policies which ensued over a very lengthy period of time, the focus is not on ‘a
single decisive cause’ but a ‘concurrence of events conducted over time.’86 The
Constitutional Court held in this regard :
‘. . . In enacting the Restitution Act, the legislature must have been aware that apartheid laws
on land were labyrinthine and mutually supportive and in tu rn spawned racist practices. And
vice versa. Therefore, often the cause of historical dispossession of land rights will not lie in
an isolated moment in time or a single act. The requisite causal connection must be gathered

82 Richtersveld above n 8 para 88; Ndzundza -Ndebele above n 24 para 46.
83 Dulabh v Department of Land Affairs 1997(4) SA 1108 (LCC).
84 Ndzundza -Ndebele above n 24 para 47 -48.
85 Above n 4, p ara 69.
86 Para 66.

36
from all the facts as long as th e connection commends itself to common sense and is
reasonable rather than remote or far -fetched.’

[74] In this case, the plaintiffs resided on Zandfontein and Bultfontein
exercising customary law title over the land in the 19th century before white
people arrived, but the properties became subject to common law titling well
before 1913. The Constitutional Court has made it clear that registered
ownership of land does not always enjoy primacy over customary law title, as
that wou ld ‘elevate ownership notions of the common law to the detriment of
indigenous law ownership for purposes of restitution of land rights.’87
Moreover, ‘[i]n appropriate cases, under the jurisdiction crafted by the
Restitution Act, registered ownership in lan d will not be held to have
extinguished rights in land recognised under indigenous law.’88 As indicated
above, however, this is a case where this Court is compelled to conclude that
both the Maubane and the Maloka were dispossessed of their full customary l aw
rights over Zandfontein and Bultfontein prior to 1913 in circumstan ces where
the land had been subject to common law titling and the plaintiffs had beco me
labour tenants to the white owners who had demarcated the areas for their
occupation, ploughing and grazing .89

[75] A key issue in argument was whether the plaintiffs’ status as labour
tenants prior to 1913 means that any rights in land lost after 1913 could not
have been lost by the plaintiffs as communities as defined in the Restitut ion Act.
The first defendant submitted that it does , also relying on Goedgelegen.90 The

87 Goedgelegen above n 4 para 22.
88 Ibid citing with approval the following holding of the SCA in Ndebele -Ndzundza above n 24 para 38: ‘The
Act recognizes complexities of this kind and attempts to create practical solutions for them in its pursuit of
equitable redress. The statute also recog nizes the significance of registered title. But it does not afford it
unblemished primacy. I consider that, in this case, the farm’s residents established rights in the land that
registered ownership neither extinguished nor precluded from arising.’
89 Goedgelegen above n 4 para 6 onwards on the facts and paras 20 to 22. Compare Ndebele -Ndundza above n
24.
90 Above n 4 para 46.
37
Human Rights Commission contended that Goedgelegen, properly understood,
does not pre clude a finding, on the facts of this case, that the plaintiffs’ labour
tenancy rights in land were held as a community in 1913 and thereafter. In my
view, the submission is an important and persuasive one. The Constitutional
Court in Goedgelegen was concerned with determining the nature of a legal
relationship between landowner and labour tenants in 1969 on a farm in
Limpopo. The circumstances in Goedgelegen prior to and about 1913 are
similar to what prevailed in this case to the extent that the relationship between
the landowners and the community about land were then negotiated for the
claimants through their traditional leader .91 But Goedgelegen was decided based
on the circumstances that prevailed in 1969, by which time each of the families
within the claimant community had been compelled to have its own separate
relationship with the owner. 92 And as the history of labour tenancy in this
country recounted in Goedgelegen shows,93 the relationship s between
landowner and labour tenants changed over time. Importantly, t he grid of
discriminatory laws and practices in place in 1913 was different to what was in
place by 1969 . By 1969, the process of creating ‘white’ South Africa was far
advanced and ‘white ’ South Africa was serviced with labour from African
people , who were su bject to harsh labour laws, confined to scheduled and
released areas and the emerging ‘homelands ’.94 Viewed in this way, there is
force in the factual submission that before, in an d even after 1913, a community
may well have reasonably understood that they held labour tenancy interests in
land, in common and under shared rules.


91 Compare Goedgelegen, above n 4 para 36.
92 Para 25, 38, 45 and 47 .
93 Paras 56 to 63.
94 See Goedgelegen para 63.
38
[76] However, the dictum in Goedgelegen the first defendant relies on to
submit that legally, the relationship between landowner and l abour tenant was
individualised is stated generally.95 It reads as follows (footnotes omitted)

‘In any event, at its very core, labour tenancy under the common law arises from a so -
called innominate contract between th e landowner and the labour tenant, requiring the tenant
to render services to the owner in return for the right to occupy a piece of land, graze cattle
and raise crops. In name, it is an individualised transaction that requires specific performance
from th e contracting parties. This means that labour tenancy does not sit well with commonly
held occupancy rights. It is a transaction between two individuals rather than one between the
landlord and a community of labour tenants. It must however be recognised t hat despite the
fiction of the common law in regard to the consensual nature of labour tenancy, on all
accounts, the labour tenancy relationships in apartheid South Africa were coercive and
amounted to a thinly veiled artifice to garner free labour.’

[77] While generally stated, I do not understand the dictum to go so far as to
hold that there are no circumstances in which labour tenancy gave rise to rights
in land that could be held by a community , especially in the earlier parts of the
20th century . The Cons titutional Court was no t faced with that question, and in
turn did not have to consider the legal nature of the tiered system that appears to
have been in place in this cas e.

[78] While this is an important issue, and I find the argument persuasive, it is
not ultimately necessary for me to decide it for three r elated reasons. First,
while during their labour tenancy period, the plaintiffs were subjected to
arbitrary eviction , they ultimately returned to the land . Secondly, save in respect
of Portion A, the case stands to be decided squarely in the plaintiffs’ favour
without considering what rights in land they lost as labour tenants. Thirdly ,
although the Maloka rely on the Mokgoko ’s arrival on Bultfontein and their
purchase of Portio n A, described as t he Maloka’s stolen land, to ground a

95 Para 46.
39
dispossession, I am unable to find in their favour in respect of Portion A for a
different reason. This is that the Maloka did not adduce sufficient evidence to
prove that they were dispossessed of that specific portio n of land at that time, in
other words, in 1923. While it is probable that the labour tenancy interests of the
Maloka were impacted by the Mokgoko’s arrival, the evidence did not go far
enough to establish that they lost their access to what was then Porti on A.

[79] In my view, the plaintiffs were nonetheless subjected to a series of
dispossessions of rights in land as a result of past racially discriminatory laws
and practices in respect of both Zandfontein (Phake) and B ultfont ein
(Mmametlhake) as communities as contemplated in the Restitution Act . In other
words, in respect of rights in land derived from shared rules determining access
to land held in common by them.

[80] First, the Maubane were dispossessed of rights in land when they were
unable to acquire title o f the Remaining Extent, Zandfontein in 1926 as a result
of the proscription against African ownership of non -scheduled land in the 1913
Act. As e xplained, this was in an effort to reacquire, now under common law,
their historical land which they had held under indigenous title. I n Ndebele -
Ndzundza, the SCA left open whether attempts by a community to buy back
their historical land that were blocked by past racially discriminatory l aws and
practices, such as the proscription against ownership of land by African people
outside of scheduled and released areas amounted to a constructive
dispossession.96 In Ndebele -Ndzundza, the community in question had been
precluded from purchasing the land at all.

[81] In this case, the Maubane did purchase the property but were not given
full title. Rather, they were required to submit to a trust regime where the

96 Above n 24 para 49. The material facts in that case are recounted in paras 21 to 27.
40
property was owned by the State in trust for their benefit. It cannot be gainsaid
that this regime was racially discriminatory. In my view, it amounted to a
dispossession because the Maubane were precluded from owning the property,
whether as joint owners or trustees.97 In the result, and because of their race,
they were deprived of full enjoyment of ownership of the property. The SCA
described the incidents of ownership in Ndebele -Ndzundza in these terms:

‘[33] According to the most influential modern analysis of ownership, that by Tony
Honoré, the incidents of the classic right of ownership are the right to possess, the
right to us e, the right to manage, the right to the income of the thing, the right to the
capital, the right to security, the rights of transmissibility and the absence of term, the
prohibition of harmful use, the liability to execution and residuarity. Honor é
emphas ises that though these incidents are ‘standard’, they are not individually
necessary ‘for the person of inherence to be designated ‘owner’ owner of a particular
thing in a given system.’

[82] Under a trust arrangement, it is the trustees who own and thus ultimately
control the property. But even assuming the Maubane , if given the choice,
would have chosen to hold the property in the vehicle of a trust for the benefit
of the members of the ir traditional community , they were precluded from being
trustees due to the discriminatory practices in place .


[83] That the Remaining Extent of Zandfontein was sold in execution in 1934
does not in my view disentitle them to relief in view of the approach to
causation adopted in Goedgelegen referred to above.98 Various considerations
are relevant. As the Maubane were not able to serve as trustees, they would not
have had ultimate control o ver the mortgage or repayment process. They had for

97 Inasmuch as it was suggested that this means that gives rise to an independent cause of action under section 3,
that may well be so, but does not mean that it does no t also constitute a dispossession in respect of which
restitution could be claimed.

98 See paras 69 and 70.
41
many years already endured the status of labour tenancy, itself a feudal
institution , and treated as squatters. The sums they paid through the sale of their
livestock and mealies were significant , and well in excess of the price for which
the property was sold in execution. The sale in execution ensued in 1934 when
the passage of the 1936 Act and the statutory creation of the Trust was
imminent . Documentary evidence sugges ts that the prop erty had already been
earmarked as land to be released from 1927.99 In my view, it is probable that the
Maubane would have secured their title if the discriminatory laws and practices
had not been in place at the time, and, at the very least, these were a significant
cause of their loss of the property in 1934. Moreover, there can be no debate
that the Maubane suffered this dispossession as a community as defined in th e
Restitution Act . This conclusion makes it unnecessary for me to decide whether
their subsequent efforts to repurchase the Remaining Extent constituted a
further dispossession, suffice to emphasise that the Maubane acutely
experienced the relentless impact of the grid of discriminatory laws and
practices on an ongoing basis.

[84] As for the Maloka, there was no dispute that in their efforts to purchase
Portion D of Bultfontein, they were cheated of their money , apparently by Mr
van der Walt and Mr van Citert. Nor can it be gainsaid that they were prevented
from participating equally in the property market in their efforts to buy their
historical land under common law. The plaintiffs did not submit, however, that
this amounted to a constructive dispossession. O n the limited argument and
evidence before Court , I am unable to conclude that the Maloka demonstrated a
dispossession in respect of Portion D as a result of their thwarted efforts to
purchase it .



99 Exhibit D p 679.
42
[85] Secondly, in my view, both the Maubane and the Maloka we re
dispossessed of their ability to enjoy indigenous law rights in land when – after
the whites left Zandfontein (by 1948) and Bultfontein (1938/39) – they became
subject to the Trust regime. Their labour tenancy status had by that time
terminated and accordingly, the Goedgelegen difficulty about their status as a
communit y no longer arose. Rather, it was clear throughout the proceedings that
absent any impediment to doing so, both the Maubane and Maloka self -defined
as traditional communities and managed their land according to their shared
rules under customary law . Indeed, that both plaintiffs had sought to purchase
land collectively (and in the case of the Maubane did purchase Remaining
Extent, Zandfontein), confirms their intention to continue to live on their
historical land subject to their shared rules. Once the white owners had left, and
the land vested in the Trust, there was no impediment to their doing so, save for
the Trust regime itself. As explained above, the Trust regime itself recognised a
level of collective traditional authority over land.100 However, it imposed
progressively intrusive restrictions on land use through Regulation, which were
heightened during the ‘betterment ’ period. Indeed, during that period, there
were coerced movements on the properties themselves resulting in diminution
of access and control.

[86] Thirdly, both the 1986 and the 1990 Proclamations further dispossessed
the plaintiffs of their rights in land as communities . By that time, the 1936 Act
had been repealed and the land was design ated for communal use. There was
ultimately no dispute that these Proclamations were made without consulting
the plaintiffs and without their consent. Counsel for the first defendant
responsibly conceded this. In Mahonisi , this Court held that the process of
coerced pla cement of land of a traditional community under the territorial

100 See above para 51.
43
jurisdiction of another resulted in a deprivation of rights in land as a result of
discriminatory laws and practices.101
[169] . . . The rights in land were lost because it was no longer possible to access or control
land held in common with other members of the Mahonisi Community subject to their shared
rules of customary law . Access, if any, was now to be determined through the rules of
another community and subject to its control, as distorted by colonial and apartheid laws and
practices. In the case of the Mavambe, the Mah onisi became a structural minority . . .’

[87] The imposition of the 1986 Proclamation and the 1990 Proclamation had
the same effect on the plaintiffs. I am unable to come to the same conclusion in
respect of the 1958 Proclamation , which concerned only Portion A, Bultfontein.
This is because the Maloka did not establish that they , rather than the Mokgoko ,
exercised control over Portion A at that time. Indeed, given that by then the
Mokgoko were the beneficiaries of a trust arrangement in respect of that
property, it is unlikely that the Maloka did.102

The status and constitutional validity of the Proclamations

[88] The 1958 Proclamation and the 1986 Proclamation are no longer in force
because the 1986 Proclamation repealed the 1958 Proclamation and the 1990
Proclamation withdrew the 1986 Proclamation.

[89] The 199 0 Proclamation stands on a different footing. The plaintiffs
submitted that the Proclamation had been impliedly repealed or supers eded by
the Restitution Act. I disagr ee. In this regard, the submissions of Contralesa and
the first defendant are instructive although it became necessary to conduct

101 Above n 26 .
102 The same cautionary remarks made in Mahonisi above n 26 para 170 are warranted in this case (footnotes
omitted) ‘[170] It is important to note that the above conclusion does not amount to a finding that the Mahonisi
land was, historically, owned by the chief. A lthough there were some suggestions in the evidence that communal
land was owned by or belonged to the chiefs, the claims were unsubstantiated. Such claims are in any event
contested and they do not give cognizance to the strength of the rights that vest in inter alia , households once
land is allocated. It is not necessary for us to deal in this case with the details of how land rights vested within
the Mahonisi Community under customary law.
44
further research . According to my r esearch guided by the parties ’ submissions ,
the 1990 Proclamation survived the transition to democracy and retain s legal
force today.

[90] Chapter 12 of the Constitution recognises th e institut ion of traditional
leadership.103 Parliament has passed various laws intended to deal with the
transformation of the institution as a direct result of interference in it under
colonial, apartheid and ‘homeland ’ rule. To this end, in 2003, Parliament passed
the Traditional Leadership and Framework Act 41 of 2 003 (the 2003
Framework Act). In its preamble, Parliament recognised that the State, in
accordance with the Constitution, seeks to set out a national framew ork and
norms and standards that will define the place and role of traditional leadership
within the new system of democratic governance; to transform the institution in
line with constitutional imperatives; and to restore the integrity and legitimacy
of the institution of traditional leadership in line with customary law and
practices.

[91] Section 3 of the 2003 Framework Act provides for the establishment and
recognition of traditional councils for traditional communities within defined
areas of jurisdictio n. Section 28 contains the Act’s transitional provisions and as
the Constitutional Court explained in Tongoane, referred to above,104 tribal
authorities that were established in the past were transformed into traditional
councils under the 2003 Framework Act .105

103 Section 211 is titled Recognition and reads:
(1) The institution, status and role of traditional leadership, according to customary law, are recognised,
subject to the Constitution.
(2) A traditional authority that observes a system of customary law ma y function subject to any applicable
legislation and customs, which includes amendments to, or repeal of, that legislation or those customs.
(3) The courts must apply customary la w when that law is applicable, subject to the Constitution and any
legislation that specifically deals with customary law.


104 See para 53 above.
105 Section 28 provided:
Transitional arrangements
45

[92] A key feature of the 2003 Framework Act was its establishment of a
commission known as the Commission on Traditional Leadership Disputes and
Claims. One of its areas of authority is to investigate cases where ‘the
legitimacy of the establishment or disestablishment of “tribes”’ is in issue, or
‘disputes resulting from the determination of traditional authority boundaries
and the merging or division of “tribes”’.106 The 2003 Framework Act
contemplated that the Commission on Disputes and Claims would com plete its
work within a five year period but provision was made for the extension of that
time frame.
[93] In response to a query from the Court, Mr Maloka explained that the
Maloka have lodged a dispute with the Commission on Disputes and Claims in
respect of the Makgoka, which was decided against them, but that is currently
being ventilated in review proceedings in the High Court.

[94] Post 1994, v arious provinc ial legislatures also passed legislation
governing traditional leadership and governance including Nor th West,107
Limpopo108 and Mpumalanga.109 Each of these laws provide for the
establishment of traditional councils in designated areas. Each also contain

28(1) Any traditional leader who was appointed as such in terms of applicable provincial legislati on and was
still recognized as a traditional leader immediately b efore the commencement of this A ct, is deemed to have
been recognized as such in terms of section 9 or 11, subject to a decision of the Commission in terms of section
26.
(2) …
(3) Any “tribe” that, immediately before the commencement of thi s Act, had been established, and was still
recognized as such, is deemed to be a traditional community contemplated in section 2, subject to –
(a) the withdrawal of its recognition in accordance with the provision s of section 7; or
(b) a decision of the Commission in terms of section 26.
(4) A tribal authority that, immediately before the commencement of this Act, had been established and was still
recognized as such, is deemed to be a traditional council contemplated in section 3 and must perform the
functions referred to in section 4: P rovided that such a tribal authority must comply with section 3(2) within one
year of the commencement of this Act.
106 Section 25(2)(iv) and (v).
107 North West Traditional Leadership and Governance Act 2 of 2005 (the North West Act) .
108 Limpopo Traditiona l Leadership and Institutions Act 6 of 2005 (the Limpopo Act).
109 Mpumalanga Traditional Leadership and Governance Act 3 of 2005 (the Mpumalanga Act).
46
transitional provisions that recognise previously appointed tribal authorities as
traditional councils.110

[95] Parliament has since repealed the 2003 Framework Act and replaced it
with the Traditional and Kho i-San Leadership Act 3 of 2019 (the 2019 Act) . On
30 May 2023, the Constitutional Court declared the 2019 Act to be
unconstitutional and invalid but suspended its order for two years.111 Section of
the 2019 Act deals with transitional arrangements and also preserves , until
altered, the status of previously appointed traditional authorities as traditional
councils. It also deals with the finalisation of the business of the Commission on
Disputes and Claims.

[96] There is nothing before the Court that suggests that there has been any
change to the area of jurisdiction of the Mokgoko since the advent of
democracy under these processes. Rather, the 1990 Proclamation’s
determination of the area of jurisdiction of the Mokgoko, now presumably
deemed a traditional council, retains its legal force through the transitional
provisions referred to above.

[97] Accordingly, the question whether the 1990 Proclamation is in
accordance with the Constitution and valid arises for decision. Until set aside, it
exists in fact and has legal consequences.112 Put differently, ‘[N]o decision
grounded on the Constitution or law may be disregarded without recourse to a

110 Section 43(1) of the North West Act, section 91 of the Limpopo Act and section 29 of the Mpumalanga Act.
111 Mogale and Others v Speaker of the National Assembly and Others [2023] ZACC 14; 2023 (9) BCLR 1099
(CC); 2023 (6) SA 58 (CC)

112 Oudekraal Estates (Pty) Ltd v Ci ty of Cape Town and Others 2004 (6) SA 222 (SCA) ([2004] 3 All SA 1;
[2004] ZASCA 48 para 26 approved by the Constitutional Court in inter alia MEC for Health, Eastern Cape
and Another v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute 2014 (3) SA 481 (CC) (2014 (5) BCLR
547; [2014] ZACC 6 para 101 to 104.
47
court of law’.113 In this regard, there was no dispute between the parties that this
Court has the power to declare the Proclamation invalid if it is found to be
inconsistent with the Constitution.

[98] A theme that ran through the first defendant’s pleadings and evidence is a
belief that the Proclamations conferred ownership of the properties on the first
defendant or that they the first defendant thereby ‘acquired’ the pr operties .
Ultimately, when pressed by the Commission’s representative, Princess
Mokgoko appeared to accept that they did not confer ownership. Th e
Proclamations did not confer ownership of the properties on the Mokgoko.
There is nothing in the 1927 Act, the 1951 Act or t he 1978 Bophuthatswana Act
from which it can be concluded that t he Proclamations conferred ow nership of
properties falling under the area of jurisdiction of a tribal authority. T he duties
of tribal authorities were set out in the respective laws.114 None confer
ownership. Rather, what was contemplated, at least by the 19 78
Bophuthatswana Act, is that the tribal authority function in its area ‘in
accordance with the law and customs observed by that tribe . . .’.115

[99] What the evidence showed however, is that the power under customary
law to take decisions about the management and control of land, including its
allocation, were impacted by the Proclamations. Thus, where the Maloka and
the Maubane could assert these powers under customary law prior to the 1986
and 1990 Proclamation, those power s then vested with the Mokgoko. It is in this
way that the dispossession of rights, which was coercive, occurred. Of course,
the authority conferred by the 1986 and 1990 Proclamations extend well beyond
the issue of c ontrol and management over land .

113 Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker
of the National Assembly and Others [2016] ZACC 11; 2016 (5) BCLR 618 (CC); 2016 (3) SA 580 (CC) para
74 which confirms that the Oudekraal / Kirland principle applies whether or no t the legal acts in issue are
administrative action.
114 For the 1978 Bophuthatswana Act , see section 4, which lists the general duties of tribal authorities.
115Section 3(1)
48

[100] The submission is that a Proclamation that continues to dispossess
a community of their customary rights in land that was made coercively and
without consultation and consent and under racially discriminatory laws and
practices would limit at least the rights to dignity,116 equality117 and cultural
rights118 protected in the Constitution. The Human Rights Commission
submitted that further rights are limited, specifically socio -economic rights. The
first respo ndent did not attempt through any evidence to j ustify its ongoing
validity.

[101] Mr Mathebula, for the Commission, submitted that that the
Proclamations – even if they remain extant – do not preclude restoration of the
properties because they do not, themselves, confer ownership. In principle, this
must b e correct . However, the question whether the properties should be
restored or partly restored is an issue to be dealt with in Part B.

[102] The Human Rights Commission submitted that the Court must
declare the Proclamations to be invali d, although during argu ment, counsel
accepted that any declaration of invalidity should be restricted to the issue of
control of management of land under customary law. The contention advanced
is that without that declaration, this Court would be failing to grant effective
restitutionary relief.

[103] The plaintiffs’ difficulty, however, is that the legislature has put in
place a system for recognising traditional communities and altering boundaries
of jurisdiction of their councils . In this case, there is an ongoing legal process in
this regard at least in respect of the Maloka . Surely those now vested with the

116 Section 10 of the Constitution.
117 Section 9 of the Constitution.
118 Section 30 and 31 of the Constitution.
49
powers to repeal or alter the legal acts recorded in the Proclamation have an
interest in these proceedings. As I understand the laws which govern these
processes, this appear s at least to be the relevant Premier or Premiers. Which
Premier is less clear and would probably depend on wh ere the properties are
situated, which is not wholly clear on the papers before Court.119

[104] In these circumstances, the decision whether the Proclam ation is
invalid and unconstitutional, at least to the extent that it vested powers of
management and control over the properties under customary law in the
Mokgoko, should be postponed to be dealt with once any necessary joinder has
been effected. While t he Court is entitled mero motu to raise joinder, the parties
should be heard in this regard.

Remedy

[105] At this stage of proceedings, the plaintiffs are entitled to
declarations of their entitlement to restitution in respect of the dispossession of
their rights in land as a result of past racially discriminatory laws and practices
in respect of Zandfontein and Bultfontein (save for Portion A) . I have dealt with
the status of the Proclamations save for their constitutional validity. The issue of
the constit utional validity of the 1990 Proclamation is postponed for further
hearing. Whether it is convenient to further ventilate that issue at the same time
of Part B of the proceedings can be addressed during case management.

[106] Provision is made in the order to ventilate any dispute about the
precise boundaries of the dispossessed land as a result of changes to the
boundaries or descriptions of the properties over time . As mentioned above,

119 Zandfontein appears to be in Mpumalanga whereas the location of Bultfontein is difficult to estasblish.
50
Bultfontein and Zandfontein underwent changes in description and processes of
subdivision and consolidation.

[107] An important issue in this regard concerns the current location and
extent of the property the Mo kgoko purchased in 1923, then known as Portion
A. It is clear from Grant 15195/1944 that the purchased area was 2079 morgen
and 440 square roods in extent . As matters stand, the Court is not in a position
clearly to demarcate the precise boundaries of the former Portion A. In this
regard, some light is shed in a site i nspection rep ort and s urvey maps of what is
now refer red to as Portion 1 of Bultfontein. This is, however, not easy to
reconcile with the property enquiry details on record recording the current
ownership of Bultfontein canvassed in evidence. It is against this background
that provision is made to venti late any dispute in Part B on any issues arising
from the changes in property description or boundaries over time .

[108] This Court only orders costs in exceptional circumstances and there
are none.

Order

[109] In light of the above, the following order is made:

1. The questions a) whether the plaintiffs were dispossessed of rights in land
in respect of Zandfontein 31JR and Bultfontein 174JR after 19 June 1913 as a
result of past racially discriminatory laws and practices and b) the status and
constitutional validit y of Proclamation No 1727 of 21 November 1958,
Proclamation 10 of 20 June 1986 (the 1986 Proclamation) and Proclamation 69
of 23 March 1990 (the 1990 Proclamation) are separated from the issue of
remedy, which is to be determined in Part B.

52


I agree.
________________________
S MLANGENI
Assessor, Land Court
APPEARANCES :
For the plaintiffs: MS Motshekga instructe d by Noko Ramaboya
Attorneys
For first defendant: M Ntshangase instru cted by SC Mdhluli Attorneys
For the Commission: Mr Mathebula, State Attorney, Tshwane