1
IN THE LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG, JOHANNESBURG
Case no: LCC 16/2020
In the matter between:
BAKGATLA BA MOCHA
(MAUBANE)
First Plaintiff
BAKGATLA BA MOCHA
(PHOPOLO MALOKA)
Second Plaintiff
and
BAKGATLA BA MMAKAU BA
MOKGOKO
First Defendant
THE PRESIDENT OF THE
REPUBLIC OF SOUTH AFRICA
Second Defendant
COMMISSIONER OF LAND
CLAIMS COMMISSION
First Interested Party
REGIONAL LAND CLAIMS
COMMISSION, LIMPOPO
Second Interested Party
SOUTH AFRICAN HUMAN
RIGHTS COMMISSION
CONTRALESA
Concerning
First amicus curiae
Second amicus curiae
2
Zandfontein 31JR and Bultfontein 174
JR
Reportable
Coram: COWEN DJP sitting with Assessor SJ MLANGENI
Heard: 11-15 August 2025 & 2 September 2025
Delivered: 20 November 2025
Summary: Restitution of Land Rights Act 22 of 1994; Proclamation 69 of 23
March 1990 declared inconsistent with the Constitution and invalid to the
extent that it confers power to control and manage property under
customary law; extent of property defined and restored as restitution.
ORDER
1. It is declared that the precise boundar y of Portion A, referred to in
Order 4 of the order of this Court of 27 February 2025 is depicted on
the diagram attached as Annexure B as ABCDEFGHJKLMNO
(Portion A).
2. Save in respect of Portion A, it is declared that the Proclamation made
in Government Notice 69 of 23 March 1990 is inconsistent with the
Constitution of Republic of South Africa and invalid to the extent that
it confers on the first defendant the power to control and manage the
property to which it relates under customary law.
3. The declaration of invalidity in Order 2 above operates from the date
of this order.
3
4. Zandfontein 31 JR is restored to the Bakgatla Ba Mocha (Ba Maubane)
in the form of ownership.
5. Save for Portion A, Bultfontein 174JR is restored to the Bakgatla Ba
Mocha (Ba Maloka) in the form of ownership.
6. The Commission on the Restitution of Land Rights and the Minister of
Rural Development and Land Reform are directed to take such steps as
are necessary to facilitate the transfer of ownership of the
aforementioned properties, respectively, to the Ba Mauban e and Ba
Maloka, or such entity as they may nominate, and should any dispute
arise in connection therewith the parties may approach the Court for
further relief.
7. There is no order as to costs.
JUDGMENT
COWEN DJP
Introduction
[1] This case concerns restitution claims of the first and second plaintiffs,
respectively, the Bakgatla ba Mocha Ba Maubane (the Maubane) and the Bakgatla
Mocha Ba Maloka (the Maloka) lodged under the Restitution of Land Rights Act
22 of 1994 (the Restitution Act). Although the referred claims concern numerous
farms, the dispute currently before Court is about two claimed properties, being
4
Zandfontein 31R (Zandfontein) and Bultfontein 174JR (Bultfontein). The
Maubane claim Zandfontein and the Maloka claim Bultfontein.
[2] The first defendant is the Bakga tla ba Mmakau ba Mokgoko (the
Mokgoko) who assert an interest over both properties , centrally arising from
various Proclamations made in terms of the Native Administration Act 38 of 1927
(the 1927 Act), the Bantu Authorities Act 68 of 1951 (the 1951 Act) and the
Bophuthatswana Traditional Authorities Act 23 of 1978 (the 1978
Bophuthatswana Act). The Commission for the Restitution of Land Rights (the
Commission) is represented in these proceedings by the first and second
interested parties.
[3] The dispute has been ventilated in trial proceedings in two stages. During
2024, the parties ventilated much of Part A of the proceedings , which dealt
centrally with a dispute over whether the plaintiffs were dispossessed of their
rights in land in respect of Zandfontein and Bultfontein as a result of past racially
discriminatory laws and practices.
[4] On 27 February 2025, this Court delivered a detailed judgment (the first
judgment) making the following 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 t he Restitution of Land
Rights Act 22 of 1994 (the Restitution Act).
5
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 174JR as a result of past racially
discriminatory laws and practices and are entitled to restitution under section 2 of the
Restitution Act.
4. Order 3 does not apply to the Portion of Bultfontein 174JR described in 1944 as Portion A
of Bultfontein 472 and measuring two thousand and seventy -nine (2079) morgen, four
hundred 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.
[5] After the first judgment was delivered, the matter was placed under case
management with a view to ensuring its expeditious finalisation. Initially , steps
were taken to ensure that relevant functionaries were joined as contemplated by
Order 5 (read with paragraphs 103 and 104 of the first judgment). This resulted
in the joinder of several parties and service of the papers on them. The following
State parties were joined provisionally:1 the Premier Mpumalanga, the Premier of
Limpopo, the Premier of North West Province, the MEC Cooperative Governance
and Traditional Affairs, Mpumalanga Province; the MEC Cooperative
Governance, Human Settlements and Traditional Affairs, Limpopo Province and
the MEC Cooperative Governance and Traditional Affairs, North West Province
(the State parties). The following further parties were also provisionally joined:
the Mpumalanga Provincial House of Traditional and Khoi -San Leaders; the
Limpopo Provincial House of Traditional and Kho i-San Leaders and the North
West House of Traditional and Kho-San Leaders.
West House of Traditional and Kho-San Leaders.
1 This approach was adopted in circumstances where the parties did not know which of the parties so joined had
an interest due to the unusual history relating to the location of the properties and the alteration of borders of the
former homelands and newly created provinces through the democratic transition.
6
[6] An opportunity was thereby given to these parties to participate in these
proceedings. The State parties elected to join the proceedings , filing a notice to
participate. They determined amongst themselves that it was the relevant
functionaries from Mpumalanga who were affected and the Premier of
Mpumalanga and the MEC Cooperative Governance and Traditional Affairs of
Mpumalanga Province filed a notice to abide. None of the other parties elected to
participate in the proceedings.
[7] On 30 July 2025, the Court conducted an inspection in loco of Bultfontein.
During the inspection, it became clear that there is a dispute between the parties
about the precise boundaries of the dispossessed land as a result of changes to the
boundaries and descriptions of the properties over time. Specifically, there is a
dispute about what constitutes Portion A as defined in Order 4: the Portion of
Bultfontein 174JR described in 1944 as Portion A of Bultfontein 472 and
measuring two thousand and seventy-nine (2079) morgen, four hundred and forty
(440) square roods (Portion A). This means that it is necessary to resolve this
dispute as contemplated by Order 6. It also became clear to the parties that they
wish to lead evidence about remedy, specifically the issue of restorability of the
dispossessed land, which the plaintiffs seek in the form of ownership.
[8] Dates were set for dealing with these issues between 11 and 15 August
2025. To facilitate the determination of the dispute about the precise boundaries
of the dispossessed land, it was agreed that the Court should call as a witness or
witnesses, representatives from the office of the Surveyor -General who had
conducted an inspection in loco in 2023 over Portion 1 of Bultfontein 174JR. Oral
argument was heard virtually in the matter on 2 September 2025.
[9] This judgment, accordingly, deals with:
7
a) Whether the 1990 Proclamation is inconsistent with the Constitution and if
so, what remedy to grant;
b) The precise boundary of Portion A;
c) The issue of remedy (Part B).
[10] This judgment should be read together with the first judgment. Save to the
extent necessary, issues traversed there are not dealt with again.
Constitutional validity of the 1990 Proclamation
[11] The first question is whether the 1990 Proclamation2 is inconsistent with
the Constitution. As explained in the first judgment, the 1990 Proclamation
followed upon two earlier Proclamations , Proclamation 1727 of 21 November
1958 (the 1958 Proclamation) and Proclamation 10 of 20 June 1986 (the 1986
Proclamation).3 It was made under ss 2 and 3 of the 1978 Bophuthatswana Act.4
Its effect was to a) withdraw the 1986 Proclamation, b) redefine the tribal area of
the Bakgatla Ba Mmakau tribe to consist of Bultfontein 174JR and Zandfontein
31 JR (the Remaining Extent and Portion 2) and c) to determine that the Bakgatla
Ba Mmakau Tribal Authority shall, in addition to the Kgosi, consist of not more
than 15 councillors.
[12] The impact of the Proclamations on land administration is set out in
paragraphs 67 to 69 of the first judgment in these terms:
‘[67] The evidence was clear about the impact of the Proclamations on land administration. In
short, decisions about land management and control, including land allocations, were made by
the Mokgoko and the Maloka and the Maubane required their consent on those matters. Before
the Proclamations, they could manage and control the land under customary law under their
own Chiefs.
2 Proclamation 69 of 23 March 1990.
3 The first judgment deals with the making of these Proclamations at paras 6, 55, 63 to 66.
4 These sections are cited in full at fn 80 and fn 81 of the first judgment.
8
[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 me ntioned 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 the Mokgoko’s area – alluding to forced labour. Mr Maubane
explained 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 saying 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 offices, a hospital and the police station. He testified about home
demolition and arrests for trespass. At a later point, Mr Maloka recounted how, after the 1986
and 1990 Proclamations 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 Proclamatio ns
on land was described in these terms: ‘It made a huge impact because we could not do anything
without asking for permission. So, remember 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 difficult
to go and fe tch 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 would need a
permission. And none of the applications were approved. We needed to ask permission in our
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.’
[13] In the first judgment, this Court concluded that both the 1986 and the 1990
Proclamations dispossessed the plaintiffs of their rights in land as communities
as a result of discriminatory laws and practices. 5 By the time that these
Proclamations were made , the land was designated for communal use and the
Native Trust and Land Act 18 of 1936 (the 1936 Act) had been repealed in what
was then Bophuthatswana. The finding was made in circumstances where it was
common cause that the Proclamations were made without consulting the plaintiffs
and without their consent. The Court relied on the following dictum in Mahonisi6
concluding that the same effects were felt by the plaintiffs:
‘[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 Mahonisi became a structural minority.’
5 See paras 86 and 87.
6 Mahonisi Royal Family and Community and others v Minister of Rural Development and Land Reform and
others [2023] ZALCC 32 (Mahonisi).
9
[14] On the evidence to hand, this Court concluded:
‘[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 thes e powers
under customary law prior to the 1986 and 1990 Proclamations, those powers 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 control and management over land.’
[15] What was left open for determination was the constitutional validity of the
Proclamations which the plaintiffs challenged. Specifically , the 1990
Proclamation because it had withdrawn the 1986 Proclamation, which is no
longer extant. The 1958 Proclamation was applicable only to Portion A. It was in
light of the interests of the parties joined in these proceedings that the question of
the constitutional validity of the 1990 Proclamation was held over for
determination at this stage. 7 None of the joined parties who participated in the
proceedings elected to provide any further evidence , and in the circumstances,
the constitutional validity of the 1990 Proclamation stands to be determined on
the evidence on record, and the submissions by the parties and the amici.
[16] As indicated in the first judgment, the parties were ad idem that this Court
has the power to declare the 1990 Proclamation unconstitutional, 8 and it was
contended by and in favour of the plaintiffs that such a declaration was necessary
in order to ensure effective restitution of the dispossessed properties. It warrants
emphasis that this Court exercises its jurisdiction 9 in respect of this issue in
7 The reasoning for concluding that the parties had an interest is set out from para 90 of the first judgment. See
especially para 103.
especially para 103.
8 In terms of section 24(1)(a) of the Land Court Act 6 of 2023 (the Land Court Act), this Court has all such powers
in relation to matters falling within its jur isdiction as are possessed by a Division of the High Court having
jurisdiction in civil proceedings at the place where the land in questi on is situated, including the powers of the
High Court in relation to any contempt of Court. The High Court has the power to decide constitutional matters
under section 169(1)(a) of the Constitution.
9 In terms of section 24(1)(c). This Court is vested with the power to decide any issue in terms of any [other] law,
which is not ordinarily within its jurisdiction but is sufficiently connected to a matter within its jurisdiction, if the
10
circumstances where, as dealt with below, this Court has concluded that the
dispossessed land should be restored to the plaintiffs and the contention was
made, and is accepted, that there can be no effective restoration of the
dispossessed land to the plaintiffs in the absence of a declaration of invalidity
being granted.
[17] The parties’ main submissions (partly set out in the first judgment) are
briefly summarised. The plaintiffs submitted 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 (s 10),10
equality (s 9)11 and cultural rights (ss 30 and 31)12 protected in the Constitution.
The Human Rights Commissi on supported these submissions and submitted
further that other rights are limited too, specifically property rights (s 25)13 and
Court considers it to be in the interests of justice to do so. The erstwhile Land Claims Court enjoyed a similar
power in terms of section 22(2)(c) of the Restitution Act, should that provision be applicable to these proceedings,
an issue not canvassed.
10 Section 10 of the Constitution reads: ‘Everyone has inherent dignity and the right to have their dignity respected
and protected.’
11 Section 9 of the Constitution reads:
(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement
of equality, legislative and other measures designed to protect or advance persons, or categories of
persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not discriminate directly or indirectly against anyone on one or more grounds, including
race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language and birth.
(4) No person my unfairness discriminate directly or indirectly against anyone on one or more grounds in
terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair
discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established
that the discrimination is fair.
12 Section 30 provides: ‘Everyone has the right to use the language and to participate in the cultural life of their
choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of
Rights.’
Section 31 provides:
‘(1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other
members of that community –
(a) To enjoy their culture, practice their religion and use their language; and
(b) To form, join and maintain cultural, religious and linguistic associations and other organs of civil
society.
(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of
Rights.’
13 Section 25 provides:
11
socio-economic rights such as the right of access to sufficient food and water (s
27(1)(b)),14 which, it was submitted, is connected to the issue of access to land.15
[18] There was no attempt by the Mokgoko to justify any limitation of rights.
Indeed, during further argument on 2 September 2025, the Mokgoko did not seek
to contend that the 1990 Proclamation remains valid in light of the conclusions
reached by this Court in the first judgment.
25. Property
(1) No one may be deprived of property except in terms of law of general application, and no law may permit
arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which and the time and manner of payment of which have either
been agreed to by those affected or decided or approved by a court.
(3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting
an equitable balance between the public interest and the interests of those affected, having regard to all relevant
circumstances, including
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the
property; and
(e) the purpose of the expropriation.
(4) For the purposes of this section
(a) the public interest includes the nation's commitment to land reform, and to reforms to bring about equitable
access to all South Africa's natural resources; and
(b). property is not limited to land.
(5) The state must take reasonable legislative and other measures, within its available resources, to foster
conditions which enable citizens to gain access to land on an equitable basis.
conditions which enable citizens to gain access to land on an equitable basis.
(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory
laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally
secure or to comparable redress.
(7) 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.
(8) No provision of this section may impede the state from taking legislative and other measures to achieve land,
water and related reform, in order to redress the results of past racial discrimination, provided that any departure
from the provisions of this section is in accordance with the provisions of section 36(1).
(9) Parliament must enact the legislation referred to in subsection (6).
14 Section 27(1)(b) provides: (1) Everyone has the right to have access to – (a) …; (b) sufficient food and water;
…’
15 Relying on the following dictum in Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another [2008] ZACC 12;
2009 (1) SA 337 (CC); 2008 (11) BCLR 1123 (CC) para 85 (footnotes omitted): ‘ As the Minister pointed out,
international law recognises that the content of the right to food has the twin elements of availability and
accessibility. The first element refers to a sufficient supply of food and requires the existence of a national supply
of food to meet the nutritional needs of the population generally. It also requires the existence of opportunities for
individuals to produce food for their own use. The second element requires that people be able to acquire the food
that is available or to make use of opportunities to produce food for their own use. In respect of both elements
there is a measure of overlap with the state ’s obligation under section 25(5) of the Constitution to facilitate
equitable access to agricultural lan d, and with the state ’s obligation under section 24 of the Constitution to
conserve the environment.’
12
[19] I agree that the 1990 Proclamation is constitutionally invalid insofar as it
vests in the Mokgoko the power under customary law to control and manage
Bultfontein (save for Portion A) and Zandfontein. In my view, its continued
operation in the democratic era violates the right to dignity and cultural rights.
The Proclamation, moreover, continues to deprive the Maubane and the Maloka
of their customary rights to manage and control the land on which they reside .
This is in breach of section 25(1) of the Constitution.
[20] I commence with the breach of section 25(1) which prohibits the arbitrary
deprivation of property.16 A ‘deprivation’ entails ‘any interference with the use,
enjoyment or exploitation of private property .’17 The Constitutional Court gave
meaning to ‘arbitrary’ in FNB18 holding that a law is arbitrary when it ‘does not
provide sufficient reason for the particular deprivation in question or is
procedurally unfair.’ The Court set out several factors to establish sufficient
reason as follows:
‘a) It is to be determined by evaluating the relationship between means employed, namely the
deprivation in question, and ends sought to be achieved, namely the purpose of the law in
question;
(b) A complexity of relationships has to be considered;
(c) In evaluating the deprivation in question, regard must be had to the relationship between
the purpose for the deprivation and the person whose property is affected;
(d) In addition, regard must be had to the relationship between the purpose of the deprivation
and the nature of the property as well as the extent of the deprivation in respect of such property;
(e) Generally speaking, where the property in question is ownership of land or a corporeal
moveable, a more compelling purpose will have to be established in order for the depriving
law to constitute sufficient reason for the deprivation, than in the case when the property is
law to constitute sufficient reason for the deprivation, than in the case when the property is
something different, and the property right something less extensive. This judgment is not
concerned at all with incorporeal property.
(f) Generally speaking, when the deprivation in question embraces all the incidents of
ownership, the purpose for the deprivation will have to be more compelling than when the
deprivation embraces only some incidents of ownership and those incidents only partially.
(g) Depending on such interplay between variable means and ends, the nature of the property
in question and the extent of its deprivation, there may be circumstances when sufficient reason
16 Above fn 13.
17 First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services and
Another; First National Bank of SA Limited t/a Wesbank v Minister of Finance (FNB) [2002] ZACC 5; 2002 (4)
SA 768 (CC); 2002 (7) BCLR 702 (CC) (FNB) para 57.
18 Id para 100.
13
is established by, in effect, no more than a mere rational relationship between means and ends;
in others this might only be established by a proportionality evaluation closer to that required
by section 36(1) of the Constitution.
(h) Whether there is sufficient reason to warrant the deprivation is a matter to be decided on all
the relevant facts of each particular case, always bearing in mind that the enquiry is concerned
with “arbitrary” in relation to the deprivation of property under section 25.’
[21] Although the initial dispossession of property rights occurred before the
interim Constitution came into force in 1993, the 1990 Proclamation has entailed
an ongoing interference with the use, enjoyment and exploitation of the land on
which the Maubane and Maloka reside as they continue to be precluded,
collectively, from exercising control and management of the land under
customary law. This has continued throughout the democratic era and continues
to this day. In my view, it cannot be said that there is a sufficient reason for the
ongoing deprivation, having regard to the racially discriminatory origins of the
Proclamation and the fact that it was made wit hout consultation with and the
consent of the Maubane and Maloka , the profound ongoing impact on their
communities, their dignity and their developmental aspirations and cultural
identities.
[22] In the first judgment, the Court found that the 1986 and 1990 Proclamations
dispossessed the Maloka and Maubane of rights in land as a result of racially
discriminatory laws and practices in circumstances where they were made
without consulting the Maloka and Maubane and without their consent and this
resulted in the coerced placement of land of a traditional community under the
territorial jurisdiction of another. 19 As indicated above, this conclusion was
reached in reliance on Mahonisi20 and the evidence in this case.21
19 First judgment, para 86 and 87.
20 Above n 6 para 169
21 Above paras 12 to 14.
14
[23] It was effectively submitted that the ongoing application of the
Proclamation during the democratic era, violates the right of the Maubane and
Maloka to equality, and more specifically, not to be discriminated against on the
basis of their race and culture, inasmuch as it precludes them from exercising
control and management of Zandfontein and Bultfontein under customary law. In
circumstances where the parties did not address argument on the impact of the
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, I
decline to decide the matter on this basis. However, I am satisfied that to the
extent that the ongoing application of the Proclamation continues to preclude the
Maubane and Maloka from exercising control and management of Zandfontein
and Bultfontein under customary law, it violates their right to dignity. 22 And it
does so in a manner that negatively impacts on the right of access to sufficient
food and water.23
[24] The 1990 Proclamation also limits the rights of the Maloka and Maubane
to participate in the cultural life of their choice and to enjoy their culture under ss
30 and 31 of the Constitution.24 During the proceedings, the plaintiffs testified to
their cultural connection to the land a nd its meaning to their spiritual practices .
The deprivation of control and management over their land under customary law
also limits these rights.
[25] As mentioned, the Mokgoko did not attempt to justify any rights limitation
under section 36 of the Constitution.25 Neither did the Commission or any of the
22 Section 10 of the Constitution. The inextricable link between land dispossession and loss of dignity is canvassed
in Land Access Movement of South Africa v Chairperson, National Council of Provinces [2016] ZACC 22 ;
2016 (5) SA 635 (CC); 2016 (10) BCLR 1277 (CC) (Lamosa) at para 1 and 63.
23 Section 27(1)(b) of the Constitution.
23 Section 27(1)(b) of the Constitution.
24 Section 30 provides: ‘Everyone has the right to use the language and to participate in the cultural life of their
choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of
Rights.’ Section 31(1)(a) provides: ‘(1) Persons belonging to a cultural, religious or linguistic community may not
be denied the right, with other members of that community (a) to enjoy their culture, …’
25 Section 36 of the Constitution reads:
‘Limitation of rights’
(1)The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the
limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and
15
participating State parties. Contralesa, which participated as a friend of the Court,
emphasised the existence of a legislative process to alter the formal recognition
of traditional communities and their boundaries, which is traversed in the first
judgment.26 For present purposes, the Traditional Leadership and Framework Act
41 of 2003 (the Framework Act) and the Mpumalanga Traditional Leadership and
Governance Act 3 of 2005 are relevant.27 As mentioned in the first judgment, the
Maloka have lodged a dispute with the Commission on Disputes and Claims in
respect of the M okgoko which has been decided against them , but is currently
being ventilated in review proceedings in the High Court. In my view, the
existence of these legislative remedies to redress the impact of the Proclamation
cannot rescue the Proclamation from constitutional invalidity in respect of the
limitations referred to above. In my view, the existence of these processes would
be relevant to remedy rather than the justification of rights limitations. In any
event, the invalidity is limited to the power of co ntrol and management of land
under customary law and it is difficult to see how such an ongoing limitation can
ever be proportionate given the impact on people’s dignity of delays achieving
land justice and providing restitution for dispossession.28
[26] Indeed, argument was focused rather on remedy which is to be decided in
terms of s 172 of the Constitution . Section 172 of the Constitution provides, in
relevant part:
‘(1) When deciding a constitutional matter within its power, a court –
(a) Must declare that any law or conduct that is inconsist ent with the Constitution is invalid to
the extent of its inconsistency; and
(b) May make any order that is just and equitable, including –
(i) An order limiting the retrospective effect of the declaration of invalidity; and
freedom, taking into account all relevant factors, including -(a)the nature of the right;(b)the importance of the
purpose of the limitation;(c)the nature and extent of the limitation;(d)the relation between the limitation and its
purpose; and(e)less restri ctive means to achieve the purpose.(2)Except as provided in subsection (1) or in any
other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
26 See paras 90 to 95.
27 Parliament repealed the Framework Act in 2023 and replaced it with the Traditional and Kho -San Leadership
Act 3 of 2019 but on 30 May 2023, the Constitutional Court declared that Act to be unconstitutional. The
declaration of invalidity was suspended for two years. See para 95 of the initial judgment.
28 Lamosa above n 22 para 1 and para 43.
16
(ii) An order suspending the declaration of inval idity for any period and on any
conditions, to allow the competent authority to correct the defect.’
(2) (a) The Supreme Court of Appeal, the High Court of South Africa or a court of similar status
may make an order concerning the constitutional validity of an Act of Parliament, a provincial
Act or any conduct of the President, but an order of constitutional invalidity has no force unless
it is confirmed by the Constitutional Court.’
[27] Under s 172(1)(a) of the Constitution, the Court is obliged to declare the
1990 Proclamation invalid to the extent of its invalidity. I have already concluded
that the 1990 Proclamation is invalid to the extent that it confers power on the
Mokgoko to control and manage the dispossessed land under customary law.
However, two further issues concerning remedy arise:
a) The first is whether the declaration of invalidity should operate from the
date of commencement of the interim Constitution, being the default position ,29
or whether the Court should limit its retrospective effect in terms of s ubsec
172(1)(b)(i) of the Constitution. The plaintiffs submitted that there should be no
limitation on the retrospective effect of the declaration of invalidity. The first
defendant submitted that it should operate from the date of the order of invalidity
by this Court.
b) The second is whether it is necessary for this Court to refer the declaration
of invalidity to the Constitutional Court for confirmation under section 172(2)(a).
The plaintiffs and the SAHRC submitted that it is . The Commission submitted
that it is not.
Limiting the retrospective effect of the order
29 This flows from the doctrine of objective invalidity the Constitutional Court adopted in Ferreira v Levin NO
and Others; Vryenhoek and Others v Powell NO and Others [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1)
BCLR 1 (CC) (Ferreira v Levin) paras 26 to 28; National Coalition for Gay and Lesbian Equality and Another v
Minister of Justice and Others [1998] ZACC 15 ; 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC) ( National
Coalition) para 84; Executive Council, Western Cape Legislature, and Others v President of the Republic of South
Africa and Others [1995] ZACC 8; 1995 (4) SA 877 (CC); 1995 (10) BCLR 1289 (CC) (Executive Council) paras
102-106; Cross-Border Road Transport Agency v Central African Road Services (Pty) Ltd and another (Road
Freight Association as amicus curiae [2015] ZACC 12; 2015 (5) SA 370 (CC); 2015 (7) BCLR 761 (CC) para
20.
17
[28] On the facts of this case, I have concluded that the declaration of invalidity
should be limited and take effect from the date of this Court’s order in these
proceedings. This is in the interests of preserving comp leted transactions. First,
there is no suggestion in this case that there have been any contested or
controversial transactions or allocations on the dispossessed property . The only
contested or controversial transactions or allocations are those in respect of
property falling within Portion A, which is not part of the dispossessed land under
the first judgment.30 Second, section 11(7) of the Restitution Act regulates how
persons may transact in respect of land once a property is subject to a land claim.
Persons who have acted in accordance with those provisions should enjoy their
protection. Where persons have failed to act in accordance with those provisions,
the plaintiffs have their remedies under the Restitution Act. Thirdly, the evidence
suggests strongly that those living on the dispossessed land are, at least in the
main, the Maloka and Maubane themselves.
Referral to the Constitutional Court
[29] During argument, the importance of the issues before this Court was
impressed upon the Court and it was suggested that for that reason the order must
be suspended and the matter referred by the Registrar to the Constitutional Court
for confirmation under section 172(2)(a). It may well be desirable that this matter
receives the attention of the Constitutional Court, but that is not the question. The
question is whether the provisions of section 172(2)(a) are applicable as a matter
of law.31 If not, any aggrieved party should seek to approach the higher Courts
on appeal in the ordinary course.
30 The boundaries of Portion A are dealt with below.
31 See Mdodana v Premier of the Eastern Cape and Others [2014] ZACC 7; 2014 (5) BCLR 533 (CC); 2014 (4)
SA 99 (CC) (Mdodana).
18
[30] The purpose of section 172(2)(a) is to ensure that the Constitutional Court,
as the highest court in constitutional matters, should control declarations of
constitutional invalidity made against the highest organs of state. 32 The section
serves to ‘preserve the comity between the judicial branch of government, on the
one hand, and the legislative and executive branches of government, on the
other’33 and the separation of powers.34
[31] In my view, th is is not a case that triggers section 172(2)(a) because the
Proclamation is not an Act of Parliament, a provincial Act or any conduct of the
President. As set out in the first judgment, the 1990 Proclamation was made by
President Mangope, the former President of Bophuthatswana under ss 2 and 3 of
the 1978 Bophuthatswana Act. It was not contended that the 1990 Proclamation
constitutes an Act of Parliament. The SAHRC submitted that the Proclamation
must be viewed as a provincial Act placing reliance on DVB Behuising.35 The
submission, in short, is that an analogy can be drawn between the Proclamation
under consideration in that case and the 1990 Proclamation. In DVB Behuising,
the Constitutional Court considered Proclamation 293 of 196236 made under the
1927 Act (Proclamation 293). Amongst other things, Proclamation 293 made
provision for the establishment by the Minister of Bantu Administration and
Development of a kind of township for African citizens in land held by the South
African Native Trust. There is no question that Proclamation 293 was treated by
the Constitutional Court as, in nature, legislation and to that extent one may
consider it to be an ‘Act’. There are, however, two difficulties with this analogy.
The first is that where Proclamation 293 is, in nature, legislation, the same cannot
32 Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the
Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) at para
55 -56.
55 -56.
33President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1998]
ZACC 21; 1999 (2) SA 14; 1999 (2) BCLR 175 at para 29.
34 Mdodana, above n 31, para 22.
35 Western Cape Provincial Government and Others In Re: DVB Behuising (Pty) Limited v North West Provincial
Government and Another [2000] ZACC 2; 2000 (4) BCLR 347 (CC); 2001 (1) SA 500 (CC).
36 Government Gazette 373, 16 November 1962.
19
be said of the 1990 Proclamation which is, rather, executive or administrative in
nature. The second is that, in any event, the fact that a Proclamation may be
regarded as legislation does not give it the character of being a ‘provincial Act’
under section 172(2)(a) as an ‘Act’ under that section does not include
subordinate legislation.37
[32] The 1990 Proclamation, is best described as conduct of the former
President of Bophuthatswana. It does not follow , however, that it therefore
constitutes ‘conduct of the President ’ for purposes of section 172(2)(a) of the
Constitution. The President, under the Constitution, is the President of the
Republic of South Africa. Former President Mangope of the former
Bophuthatswana was at no stage the President of the Republic of South Africa.
[33] The SAHRC submitted that the question remains whether the powers that
vested in him in respect of the 1990 Proclamation as President of a former
homeland became vested in the President of the Republic of South Africa under
the transitional provisions of the interim Constitution 200 of 1993 or thereafter
under the Constitution . However, an analysis of those provisions shows that
executive and administrative authority in res pect of the 1978 Bophuthatswana
Act and the 1990 Proclamation vested with the relevant Premier and Province and
not with the President of the Republic of South Africa.
[34] Section 235 of the interim Constitution regulated transitional arrangements
in respect of executive authorities. Section 235(1) provided that a person who
immediately before the commencement of the interim Constitution was the
37 Mdodana, above n 31 para 23; Dawood and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others ; Thomas and Another v Minister of Home Affairs and Others
[2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) at para 11 ; Booysen and Others v Minister
of Home Affairs and Another [2001] ZACC 20; 2001 (4) SA 485 (CC); 2001 (7) BCLR 645 (CC) at para 1;
Minister of Home Affairs v Liebenberg (CCT22/01) [2001] ZACC 3; 2001 (11) BCLR 1168; 2002 (1) SA 33 (CC)
at para 9.
20
President in a government under a constitution which was in force in an area
which forms part of the national territory, continue in office until the President
has been elected and assumed office.38 In terms of section 235(5) of the interim
Constitution, upon the assumption of office by the President, the executive
authority of the Republic would vest in the President and the executive authority
of a province would vest in a Premier (once office is assumed).39 Section 235(6)
regulated the power to exercise executive authority in terms of laws in force in
any area which formed part of the national territory.40
38 235. (1) A person who immediately before the commencement of this Constitution was —
(a) the State President or a Minister or Deputy Minister of the Republic;
(b) an Administrator or a member of the Executive Council of a province; or
(c) the President, Chief Minister or other chief executive or a Minister, Deputy Minister or other political
functionary of a government under any other constitutional arrangement which was in force in an area which
forms part of the national territory,
shall continue in office until the person referred to has been elected in terms of this Constitution: Provided that a
person referred to in paragraph (a), (b) or (c) shall for the purposes of section 42(1)(e) and while continuing in
office, be deemed not to hold an office of profit under the Republic.
39 (5) Upon the assumption of office by the President in terms of this Constitution —
(a) the executive authority of the Republic as contemplated in section 75 shall vest in the President acting in
accordance with this Constitution;
(b) the executive authority of a province as contemplated in section 144 shall, subject to subsections (8) and (9),
vest in the Premier of that province, acting in accordance with this Constitution, or while the Premier of a province
has not yet assumed office, in the President acting in accordance with section 75 until the Premier assumes office.
40 ‘(6) The power to exercise executive authority in terms of laws which, immediately prior to the commencement
of this Constitution, were in force in any area which forms part of the national territory and which in terms of
section 229 continue in force after such commencement, shall be allocated as follows;
(a) All laws with regard to matters which –
(i) do not fall within the functional areas specified in Schedule 6; or
(ii) do fall within such functional areas but are matters referred to in paragraphs (a) to (e) of section
126(3) (which shall be deemed to include all policing matters until the laws in question have
been assigned under subsection (8) and for the purposes of wh ich subsection (8) shall apply
mutatis mutandis),
shall be administered by a competent authority within the jurisdiction of the national government …
(b) All laws with regard to matters which fall within the functional areas specified in Schedule 6 and which
are not matters referred t in paragraphs (a) to (e) of section 126(3) shall –
(i) If any such law was immediately before the commencement of this Constitution administered
by or under the authority of a functionary referred to in subsection (1)(a) or (b), be administered
by a competent authority within the jurisdiction of the national g overnment until the
administration of any such law is with regard to any particular province assigned under
subsection (8) to a competent authority within the jurisdiction of the government of such
province; or
(ii) If any such law was immediately before the said commencement administered by or under the
authority of a functionary referred to in subsection (1)(c), subject to subsections (8) and (9) be
administered by a competent authority within the jurisdiction of the government of the province
in which that law applies, to the extent that it so applies: …’
21
[35] Under s 144(1), the executive authority of a province vested in its Premier
and under s 144(2) ‘(a) province shall have executive authority over all matters
in respect of which such province has exercised it s legislative competence,
matters assigned to it by or under section 235 or any law, and matters delegated
to it by or under any law. ’ Under s 126 (1), the relevant province acquired the
legislative competence to make laws for the province with regard to all matters
which fell within the functional areas specified in Schedule 6, which included
cultural affairs and traditional authorities. That competence was held concurrently
with Parliament 41.
[36] The 1978 Bophuthatswana Act concerned cultural and traditional affairs
and the parties confirmed that it was assigned to the provinces. In the result, and
under subsec 144(2) and subsec 235(5)(b), executive authority in respect thereof
resided with the Premier and the province. Moreover, the power to administer the
law resided with the relevant province under section 235(6)(b)(ii). The SAHRC
sought to avoid these conclusions by relying on the provisions of section
41 Legislative competence of provinces
126. (1) A provincial legislature shall, subject to subsections (3) and (4), have concurrent competence with
Parliament to make laws for the province with regard to all matters which fall within the functional areas specified
in Schedule 6.
(2) The legislative competence referred to in subsection (1), shall include the competence to make laws which are
reasonably necessary for or incidental to the effective exercise of such legislative competence.
(3) An Act of Parliament which deals with a matter referred to in subsection (1) or (2) shall prevail over a
provincial law inconsistent therewith, only to the extent that-
(a) it deals with a matter that cannot be regulated effectively by provincial legislation;
(a) it deals with a matter that cannot be regulated effectively by provincial legislation;
(b) it deals with a matter that, to be performed effectively, requires to be regulated or co -ordinated by uniform
norms or standards that apply generally throughout the Republic;
(c) it is necessary to set minimum standards across the nation for the
rendering of public services;
(d) it is necessary for the determination of national economic policies, the maintenance of economic unity, the
protection of the environment, the never promotion of inter -provincial commerce, the protection of the common
5 market in respect of the mobilit y of goods, services, capital or labour, or tew the maintenance of national
security; or
(e) the provincial law materially prejudices the economic, health or security interests of another province or the
country as a whole.
4) An Act of Parliament shall prevail over a provincial law, as provided for in subsection (3), only if it applies
uniformly in all parts of the Republic.
(5) An Act of Parliament and a provincial law shall be construed as being consistent with each other, unless, and
only to the extent that, they are, expressly or by necessary implication, inconsistent with each other.
(6) A provincial legislature may recommend to Parliament the passing of any law relating to any matter in respect
of which such legislature is not competent to make laws or in respect of which an Act of Parliament prevails over
a provincial law in terms of subsection (3).
22
126(3)(a) to (e).42 I am unpersuaded that any of these provisions have application
to this case.
[37] The commencement of the 1996 Constitution did not alter th is position.43
And when regard is had to the current legal framework, it is the Premier who has
the power to determine or withdraw a determination of the status of a traditional
community or its area of jurisdiction.44 Following the process of joinder prior to
the recommencement of these proceedings, it was established that at least at this
stage, the relevant Premier is the Premier of Mpumalanga.
[38] In light of the above, I am unable to conclude that the President of the
Republic of South Africa is responsible for any conduct that requires or, indeed,
entitles this Court to suspend and refer its declaration of invalidity to the
Constitutional Court under section 172(2)(a). In the result, I decline to do so.
The boundaries of the dispossessed land
[39] As appears above, prayer 6 of the order in the first judgment enabled the
parties to ventilate any dispute about the precise boundaries of the dispossessed
land as a result of changes to the boundaries and descriptions of the properties
over time, during Part B of the proceedings. As indicated above, the dispute that
has arisen is the precise boundaries of Portion A of Bultfontein as referred to in
this Court’s first order. Portion A is described in Order 4 as the Portion of
Bultfontein 174JR described in 1944 as Portion A of Bultfontein 472 and
measuring two thousand and seventy-nine (2079) morgen, four hundred and forty
(440) square roods (Portion A).
42 Id.
43 Section 2(2)(b) read with section 14 of Schedule 6.
44 See for example ss 3 to 6 of the Mpumalanga Traditional Leadership and Governance Act 3 of 2005.
23
[40] To assist the Court, Ms Matlala Johanna Phalafala was called as a witness.
The Court called her in the exercise of its inquisitorial powers 45 and with the
agreement of the parties. Ms Phalafala is employed as a professional land
surveyor at the Limpopo Office of the Surveyor -General, which is part of the
Department of Land Reform and Rural Development . She was responsible for
preparing a report for a Site Inspection of what is referred to as Portion 1 of the
Farm Bultfontein 174JR which took place on 23 November 2023.46 For purposes
of assisting the Court , Ms Phalafala prepared a supplementary report which
clarified the boundaries of Portion A.
[41] After hearing the evidence and considering the relevant documents on
record, and after hearing the parties, I accept the evidence of Ms Phalafala. In the
result, this Court determines that the boundaries of Portion A ar e depicted in
Annexure B to the report of 23 November 2023 (attached and referred to as
Annexure B). Annexure B is SG Diagram No A3868 and describes what was
known as Portion A, which was later renamed Portion 1 of Bultfontein. Portion
1 was, however, more recently, subdivided and now comprises Portion 22 (also
depicted on Annexure B) and Remainder of Portion 1, which is a split remainder
with one part to the north of Portion 22 and one part to the south of Portion 22.
[42] It is helpful to place reliance on Annexure B because it depicts Portion A
with reference to an area marked clearly on the diagram as
ABCDEFGHJKLMNO and describes th at area precisely with reference to its
sides, angles and co -ordinates. Moreover it is a diagram of the office of the
Surveyor-General which is a document prepared by a registered professional land
surveyor and approved by the office of the Surveyor -General. However, to
facilitate understanding of how Portion A reflects on the ground, Ms Phalafala
prepared a sketch diagram (attached as E2).
45 Mlifi v Klingenberg 1999(2) SA 674 (LCC) para 110.
45 Mlifi v Klingenberg 1999(2) SA 674 (LCC) para 110.
46 It is found in Exhibit D p 825 and following.
24
[43] A brief summary of what the evidence demonstrates is warranted.
[44] Bultfontein was originally described as Bultfontein 472. It is now known
as Bultfontein 174 . The full extent of the property is referred to in these
proceedings as Bultfontein but it has been subdivided and portions renamed over
time. The document on recor d that best sets out the various subdivisions is
described as Folio 131 Book 5. This document is a historical document and does
not originate from the Office of the Surveyor General. However, it shows that
title was originally registered in respect of Bultfontein 242 on 23 January 1862
when it was transferred via Government Grant to Mr Hendrik Petrus van der Walt.
It then measured 8318 morgen and 558 square roods. In 1914, the property was
subdivided into four equal portions, each measuring 2079 morgen and 440 square
roods. One of these portions was named Portion A. That portion was transferred
in favour of Johannes Bodenstein van der Walt on 31 July 1914 by way of Deed
of Partition Transfer No 553/1914. On 15 June 1923, Portion A was transferred
to the Government of the Union of South Africa by way of Deed of Transfer 5484
of 1923. It still measured 2079 morgen and 440 square roods.
[45] A further document on record titled South Native Trust Grant No 15195 of
1944 also sheds light on the history of Portion A. That document also does not
originate from the Office of the Surveyor General. However, it shows that the
following took place:
a) On 31 August 1936, Portion A vested in the South African Native Trust (the
Trust) under the provisions of the section 6(1) of the 1936 Act.
b) The Trust donated Portion A to the Bakgatla-ba-Makau Tribe of Natives
under Chief Saul Mokhoko which donation was accepted by the said tribe on 23
September 1943.
25
c) Under Grant No 15195 of 1944, the Minister of Native Affairs, in his
administration of the Trust’s affairs, granted, ceded and transferred Portion A to
the Minister of Native Affairs in trust for the Bakgalta -ba-Makau Tribe under
Chief Saul Mokhoko.
d) Throughout this process Portion A measured 2079 morgen, and 440 square
roods.
e) The extent of portion A is depicted on the diagrams annexed to Deed of
Partition Transfer No 5553/1914 and Deed of Transfer 5484/1923.
[46] Ms Phalafala was able to confirm that 2079 morgen and 440 square roods
is equivalent to 1781.3582 hectares. She was also able to confirm that it is
possible to access copies of Deed of Partition Transfer No 5553/1914 and Deed
of Transfer 5484/1923 , probably from the Deeds Office in Mpumalanga .
However, it transpired that it was not necessary to do so as she was able to confirm
under oath that the diagrams that would be attached thereto would correlate with
Annexure B (save for Portion 22 being the more recent subdivision).
[47] In evidence, Ms Phalafala explained that the property descriptions changed
when the registration system was transferred from Pretoria to the new provinces
In other words it emanated from a new registration division system that was
introduced by the office of the Surveyor-General as the custodian of all cadastral
documents across all 9 provinces. It was at this time that Bultfontein 472 would
have been changed to Bultfontein 174. At the same time, the system changed from
labelling portions of Bultfontein in terms of the alphabet s to numbers. Thus
Portion A became Portion 1. Portion 1 was subsequently subdivided to create
Portion 22 with the result that it then became comprised of Portion 22 and the
Remainder of Portion 1. Portion 22 has since been consolidated and is now known
as the Farm Mmametlhake 712JR. It measures 580, 1952 hectares. The remaining
26
extent of Portion 1 after the deduction of Portion 22 is 1201.1630 hectares.
Together these portions comprise what was historically known as Portion A.
[48] It may be noted that during the course of Ms Phalafala’s evidence and the
plantiffs’ submissions, much store was placed on the fact that the Maloka dispute
that the Mokgoko purchased Portion A in 1923 and it was resultantly contended
that the whole of Bultfontein 174JR is dispossessed land. However, the extent of
the dispossessed land was determined in the first judgment. Should the plaintiffs
be aggrieved thereby, any remedy lies in an appeal.
Restorability: Part B
[49] As relief, the plaintiffs seek restoration of Zandfontein and Bultfontein in
the form of ownership and transfer of the properties into their names . The
Commission supports the plaintiffs.
[50] What is appropriate property restitution or equitable redress in response to
historical dispossession varies and is subject to the specific context.47 In context
of this case, the relevant considerations point strongly towards restitution of the
dispossessed property itself. In this regard, I have given consideration to the
factors listed in the now repealed section 33 of the Restitution Act. No argument
was addressed as to whether the provision remains applicable to this matter as a
pending matter. Nonetheless, I am of the view that the factors referred to in
section 33 of the Restitution Act, though repealed, would remain relevant to the
issue of remedy whether or not the matter stands to be determined under the law
prior to or after the Land Court Act came into force.
47 Concerned Land Claimants Organisation of Port Elizabeth v Port Elizabeth Land and
Community Restoration Association and Others [2006] ZACC 14; 2007 (2) SA 531 (CC); 2007 (2) BCLR 111
(CC) para 26; Mphela and Others v Haakdoornbult Boerdery CC and Others [2008] ZACC 5; 2008 (4) SA 488
(CC); 2008 (4) BCLR 675 (CC).
27
[51] The plaintiffs remain on the properties and have resided there for
generations as a community or part thereof, notwithstanding the relentless
degradation of their rights in land over time under colonial and apartheid laws
and practices. At times they either owned or expended significant resources
seeking to own parts of the properties they had occupied since pre-colonial times.
This despite suffering the indignity of having acquired the status of labour
tenancy on their ancestral lands prior to 1913. There has been no compensation
for lost rights either before or after democracy : rather, a perpetuation of the
indignities since 1994. In circumstances where the Court is making the aforesaid
declaration of invalidity in respect of the 1990 Proclamation, I can see no basis
for any social disruption or any impediment as regards feasibility.
[52] Indeed, the primary impediment to such restitution is the 1990
Proclamation. That is dealt with by the declaration of invalidity which serves to
ensure that there is effective restitution of rights in land. In my view, justice and
equity demand that the dispossessed properties be fully restored to the plaintiffs
in the form of ownership. While the plaintiffs did not lose title in all of the
dispossessed property, this relief is warranted in view of the history of this matter
and the nature of the rights that the plaintiffs have asserted in respect of the
dispossessed properties over time.
[53] There was no dispute that the whole of Zandfontein should be restored to
the Maubane and it was confirmed in evidence that the first defendant does not
have any presence on that property. The only issue raised in this regard was the
fact that it is not only the Maubane who reside there. On its own, this cannot
defeat a claim for restoration: there is no suggestion that their property rights will
not be respected.
28
[54] As for Bultfontein 174JR, the evidence focused on the part of the property
which, as it transpired, forms part of Portion A , now known as Portion 22 and
Remainder Portion 1. In this regard, the Maloka seek restoration of the Remainder
of Portion 1 which is largely undeveloped land. They seek only compensation in
respect of Portion 22, which is in the main made up of the part of the urban area
which is occupied by the Mokgoka and not the Maloka. I say in the main because
it transpired, not without concern, that there is a small portion of Portion 22 which
is in fact occupied by the Maloka, described as Mocha . Nonetheless, under the
first judgment, Portion A does not form part of the dispossessed land, and
accordingly, the questions of its restorability , or indeed, compensation, do not
arise.
[55] As for the rest of Bultfontein, the evidence showed that, as with
Zandfontein, the first defendant has no presence there . In this regard, however,
Mr Motshekga submitted that the Court should make an order that permits the
Maloka to renegotiate all lease or other arrangements concluded in respect of the
property. While of general import, the submission was focused on the position in
respect a portion apparently leased by Norman Agricultural Holdings. In my view,
this approach cannot be entertained . Any lease of the propert y will, on t he
principle of huur gaat voor koop survive the transfer to the Maloka. If the Maloka
wish to renegotiate the lease, or any other transaction for that matter, they will
need to do so in the ordinary course. Notably, as canvassed in the evidence, there
is a range of State and other entities occupying parts of the property whether in
the form of State services (eg a hospital) or businesses.
[56] The property is all State -owned land. From the perspective of the
Commission, in the face of a declaration of invalidity of the 1990 Proclamation,
there is no impediment to the transfer of the dispossessed properties to the
29
plaintiffs. In the event that any difficulty arises in respect of the transfer, the
parties may approach the Court for further relief.
Costs
[57] This Court only awards costs in special circumstances, dealing as it does
with social legislation. There are none in this case. Moreover, it is a case of public
significance in which two amicus curiae participated to assist the Court. The
Court is grateful to them for the valuable assistance.
Order
[58] The following order is made:
1. It is declared that the precise boundar y of Portion A, referred to in Order 4
of the order of this Court of 27 February 2025 is depicted on the diagram attached
as Annexure B as ABCDEFGHJKLMNO (Portion A).
2. Save in respect of Portion A, it is declared that the Proclamation made in
Government Notice 69 of 23 March 1990 is inconsistent with the Constitution of
Republic of South Africa and invalid to the extent that it confers on the first
defendant the power to control and manage the property to which it relates under
customary law.
3. The declaration of invalidity in Order 2 above operates from the date of this
order.
4. Zandfontein 31 JR is restored to the Bakgatla Ba Mocha (Ba Maubane) in
the form of ownership.
31
For the plaintiffs: MS Motshekga instructed by Noko Ramaboya Attorneys
Inc
For first defendant: M Ntshangase instructed by SC Mdhluli Attorneys Inc
For the Commission: Mr Mathebula, State Attorney, Tshwane
For the first amicus curiae: L Phasha instructed by the South African Human
Rights Commission
For the second amicus curiae: written submissions prepared by N Nonkonyana