Bakatla Ba Mocha and Another v Mokgoko and Others (LCC 16/2020) [2025] ZALCC 11 (27 February 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Land Claims Court South Africa: Land Claims Court You are here: SAFLII >> Databases >> South Africa: Land Claims Court >> 2025 >> [2025] ZALCC 11 | Noteup | LawCite sino index ## Bakatla Ba Mocha and Another v Mokgoko and Others (LCC 16/2020) [2025] ZALCC 11 (27 February 2025) Bakatla Ba Mocha and Another v Mokgoko and Others (LCC 16/2020) [2025] ZALCC 11 (27 February 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZALCC/Data/2025_11.html sino date 27 February 2025 Amended 3 December 2025 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE LAND COURT OF SOUTH AFRICA HELD AT RANDBURG, JOHANNESBURG Case no: LCC 16/2020 (1)  REPORTABLE:  YES (2)  OF INTEREST TO OTHER JUDGES: NO (3)  REVISED. 27 February 2025 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 SOUTH AFRICAN HUMAN RIGHTS COMISSION CONTRALESA Second Interested Party 1 st AMICUS CURIAE 2 nd AMICUS CURIAE 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 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.    A ny 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 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 during colonial and apartheid rule. Specifically, the Natives Land 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 19 th century. [4] [2]  The dispute concerns restitution claims 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 their common ancestor, Chief Matlaisane, and before him, Chief Tabane. Chief Matlaisane 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 Bultfontein 174JR (Bultfontein). [6] The Maubane claim Zandfontein, which they call Phake, and the Maloka claim Bultfontein, which they call Mmametlhake, the place of suffering. [7] The story of the loss of their land rights exposes the harms the Constitution is intended to redress. [4]  The Maubane and Maloka exercised 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 19 th century. [8] Both the Maubane and the Maloka became labour tenants 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 coercion, 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 powers on the Mokgoko. The so called ‘betterment’ scheme was introduced in the area in the early 1960s, which resulted in the Maubane and Maloka being subjected, without their consent, to increased restrictions on their use of Zandfontein and the remainder of Bultfontein under de facto Mokgoko authority. [7]  In 1977, the South African Parliament granted ‘independence’ to Bophuthatswana. [10] In 1978, both Bultfontein and Zandfontein were incorporated into the territory of Bophuthatswana [11] 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 Bophuthatswana 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 their 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 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 plaintiffs 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 properties 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, support 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 proceedings. Six witnesses testified.  The plaintiffs called three witnesses. First, Mr Ramankwe Charles Maloka testified for the Maloka. Mr Maloka is a direct descendant of the late Regent Phopolo Maloka and before him, Chief Matlaisane. Secondly, Mr Ichabod Segotho Maubane testified on behalf of the Maubane. Mr Maubane is also a direct descendant of the late Chief Matlaisane. 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 father, Chief Elias Mapale Mokgoko led the Mokgoko from 1958 until his death. The first defendant’s second witness was Mr Sethonya Moses Kgafela, 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 Commission’s research reports, which were introduced by Mr Mugwabana, the Court could accept that all of the documents in the Exhibits were copies of authentic documents. Importantly, the 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 evidence or refer to its content. That agreement did not, however, entail any concessions as to the truth of the content of any of the documents. [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 Gauteng, Limpopo and Mpumalanga. The Human Rights Commission and Contralesa were admitted as 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, the question of remedy was separated for later decision in Part B. The Court confirmed the separation [17] 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, whether the properties should be restored to the plaintiffs or other equitable redress should be ordered. The plaintiffs seek the restoration of the properties, save for Portion A [18] in respect of which they seek compensation. [17]  Various issues that arise in this case 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 , Tongoane [19] 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 community 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 occupational 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 Goedgelegen, 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 holds, in effect, that labour tenancy 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 Restitution 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 they 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 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 these 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 occupation of the properties [24]  The Maubane and the Maloka are part of the broader 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, Matlaisane, hail from a place called Ube in current day Tshwane. During the 19 th century, under then Regent Phopholo Maloka, [27] they embarked on an arduous journey to evade white settlers who were looking for free labour. They initially went to Mphe-Batho in Hammanskraal, but left when they heard white settlers were pursuing them. During their journey, parts of the community scattered, and the Maubane and the Maloka separated, but the claimants ultimately landed up, respectively, on Zandfontein and Bultfontein. [25]  When they arrived on these properties, there were 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 settled in Mmametlhake 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 20 th century after the arrival of white settlers. The dates of the arrival of the Maubane and Maloka on the properties are not clear. According to the Commission, relying on documentary records, put in evidence, the Maubane had arrived on Zandfontein by the latest 1873. [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 Maubane 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 19 th 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 Bultfontein as labour tenants, at an early stage 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 Moepi died, the Maubane were ruled by Chief Alfred Rathlahane 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 until 1951. The evidence shows 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 an 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 Maubane 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’ claims 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 thereafter 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 despite 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 Volksraad Resolution of 14 August 1884 and art 13 of the Pretoria Convention, 1881.  The latter provided that: ‘ 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 in June 1913, when the [1913 Act] was enacted.’ [12] The [1913 Act] and the [1936 Act] were the key statutes that determined where African people could live. The former contained 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 prohibited. 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, the Maubane and Maloka could only acquire the land in the exceptional circumstance where the Governor General approved sales 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 use 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. 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 ownership 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 roods, under deed number 9[…]. Meanwhile, Mr Frederick Eloff owned the Remaining Extent of the farm, also measuring 1988 morgen and 431 square roods, under deed number 9[…]. [36] [35]  Mr Maubane testified that the Maubane bought back the whole of Zandfontein. [37] The archival 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 Natives 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. According to the documentary evidence, a significant portion of the purchase price of £6500 was paid in the form of a deposit (at least £2750) 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 between 1925 and 1931, facilitated by their agent, Mr van Citert. [40] [36]  The documents 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 this period, the Maubane were vulnerable to eviction. Mr Maubane testified that in 1923, his ancestors were given a notice to vacate. A letter dated 5 October 1923 [43] confirms this occurred in circumstances where the lessee of the farm, a Mr Gilfillan, 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 Union Government introduced the 1936 Act, which formalised the separation 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 aside 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 land that vested in the Trust was “held for the exclusive use and benefit of natives.”  The Trustee had the power to “grant, sell, lease or otherwise dispose of land … to natives” and “on such conditions as he [deemed] fit.” Further, the Governor-General had the power to make regulations, among other things, “prescribing the conditions upon which natives may purchase, hire or occupy land held by the Trust” and “providing for the allocation of land held by the Trust for the purposes of residence, cultivation, pasturage and commonage.”’ [39]  Zandfontein is within the released area described 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, alternatively it could be leased to them. Acting on this belief, 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, Remaining Extent was transferred 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 half live entirely on the land and looked 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 Zandfontein, wrote to the Minister for Native Affairs requesting that farm Zandfontein be expropriated from Mr Jackson in favour of the Maubane Community. He believed that expropriation was the best course of action because: ‘… the position of the Tribe as an entity living precariously and dependent on the good wishes of the owner should not be tolerated, and it would certainly not be to the public benefit that such a position should be allowed to continue.’ [49] [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 apparently 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 Officer 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 the Maubane would gain common law ownership 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 Bultfontein, but they did not succeed. Mr Maloka testified that in 1922 his ancestors, through Regent 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 amounts as £668.  There is no 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 Cittert (£468), and without remedy. [55] According to the documentary evidence, the 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 coerced by the government to leave their own place of residence, known as Elsjeskraal. The Maloka testified about how, under customary law, this meant that the Makgoko were 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 household. Thus if you migrate to a place you are subject 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 parts of Bultfontein the Mokgoko or Maloka then occupied, and no evidence as to how their arrival affected the specific area then occupied by the Maloka, who, it was common cause, were by then living as labour tenants. It is probable that the Maloka’s interests as labour tenants were adversely impacted by their arrival, but the 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. [46]  According to Mr Kgafela, one of the reasons 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 Matlhake, 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 Government 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 Affairs in trust for the Mokgoko. Princess Mokgoko sought in her evidence to suggest that more of Bultfontein was purchased than the 2079 morgen, but that 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. [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 government. Viewed nationally, it resulted in 13% of South Africa’s land being set aside 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 to 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 was described as forming part of 'a colossal social experiment and a long term policy'. [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 these 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 circumstances, the conditions under which the Maubane and Maloka could 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 this period. For present purposes, however, what is significant is that while the Regulations imposed intrusive controls over the use of land, they also recognised the application of customary law in these areas and a role for traditional authorities in land allocation. This appears from an analysis of the Regulations, the import of 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 evaluation 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 land 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 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 Zulu 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 which 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 of 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 respective 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 traditional councils may exercise powers and perform functions relating to the administration of communal land. [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 other 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 reserved 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 Act [67] and sections 2 and 3 of the 1951 Act. [68] Under the 1927 Act, the Governor 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 Bultfontein No 242 as it was then known. Under the 1951 Act, the Governor-General established a tribal authority for the Bakgatla 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 only 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 South 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 homesteads 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 applicants 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 applicants 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 environmental 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 that 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 Bultfontein on which the Maloka were residing: ‘in their own back yard’. [74] Mr Maloka 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 moving 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 advantage of the Mokgoko and the disadvantage of the Maloka. Mr Kgafela’s response was, in effect, that that was the law of the time. However, his testimony effectively corroborates the plaintiffs’ version that historically, the Maloka were not subject to control by the Mokgoko in respect of their control and administration of their land. The control was coerced. [60]  Mr Moagi also testified about the ‘betterment’ scheme confirming that it entailed the movement of people. He referred specifically to movement of members of the Maubane family from Mashiya Namane to Mmametlhake. Indeed, his testimony ultimately corroborated the plaintiffs’ 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] ‘ 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 “independence” 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 Bophuthatswana Border Extension Act. Notwithstanding the creation of Bophuthatswana, South African laws continued to apply until repealed or amended. [77] In 1979, and under 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 Act].’ There was no evidence led about any restrictions on the use of Zandfontein and Bultfontein imposed 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 communities determining access to land under customary law. [63]  It is against this background that the 1986 and 1990 Proclamations were introduced under 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, 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 Proclamations were made under both section 2 [80] and 3 [81] of the 1978 Bophuthatswana Act. [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 Bakgatla 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 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. [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 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 Proclamations 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 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 would 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 beneficiary under a trust arrangement and beneficial occupation for a continuous period 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 that, 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 determination, 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 turn 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 from all the facts as long as the 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 19 th 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 would ‘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 land 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 law rights over Zandfontein and Bultfontein prior to 1913 in circumstances where the land had been subject to common law titling and the plaintiffs had become 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 Restitution Act. The first defendant submitted that it does, also relying on Goedgelegen. [90] The Human Rights Commission contended that Goedgelegen, properly understood, does not preclude 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 relationships between landowner and labour tenants changed over time. Importantly, the 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 subject 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 and even after 1913, a community may well have reasonably understood that they held labour tenancy interests in land, in common and under shared rules. [76]  However, the dictum in Goedgelegen the first defendant relies on to submit that legally, the relationship between landowner and labour 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 the 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 the 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 that 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 20 th century. The Constitutional Court was not 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 case. [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 related 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 Portion A, described as the Maloka’s stolen land, to ground a 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 portion 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 Portion 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 Bultfontein (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 of the Remaining Extent, Zandfontein in 1926 as a result of the proscription against African ownership of non-scheduled land in the 1913 Act. As explained, this was in an effort to reacquire, now under common law, their historical land which they had held under indigenous title. In Ndebele-Ndzundza, the SCA left open whether attempts by a community to buy back their historical land that were blocked by past racially discriminatory laws 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 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 use, 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 emphasises 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 their 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 over the mortgage or repayment process. They had for 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 suggests that the property 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 the 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. On 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. [85]  Secondly, in my view, both the Maubane and the Maloka were 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 community 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 designated 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 placement of land of a traditional community under the territorial 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 Mahonisi 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 1990 Proclamation stands on a different footing. The plaintiffs submitted that the Proclamation had been impliedly repealed or superseded by the Restitution Act. I disagree. In this regard, the submissions of Contralesa and the first defendant are instructive although it became necessary to conduct further research. According to my research guided by the parties’ submissions, the 1990 Proclamation survived the transition to democracy and retains legal force today. [90]  Chapter 12 of the Constitution recognises the institution 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 2003 (the 2003 Framework Act). In its preamble, Parliament recognised that the State, in accordance with the Constitution, seeks to set out a national framework 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 jurisdiction. 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] [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 complete 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, various provincial legislatures also passed legislation governing traditional leadership and governance including North West, [107] Limpopo [108] and Mpumalanga. [109] Each of these laws provide for the establishment of traditional councils in designated areas. Each also contain 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 Khoi-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 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 properties. Ultimately, when pressed by the Commission’s representative, Princess Mokgoko appeared to accept that they did not confer ownership. The Proclamations did not confer ownership of the properties on the Mokgoko. There is nothing in the 1927 Act, the 1951 Act or the 1978 Bophuthatswana Act from which it can be concluded that the Proclamations conferred ownership of properties falling under the area of jurisdiction of a tribal authority. The duties of tribal authorities were set out in the respective laws. [114] None confer ownership. Rather, what was contemplated, at least by the 1978 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 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. [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] equality [117] and cultural rights [118] protected in the Constitution. The Human Rights Commission submitted that further rights are limited, specifically socio-economic rights. The first respondent did not attempt through any evidence to justify 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 be 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 invalid, although during argument, 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 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 appears at least to be the relevant Premier or Premiers. Which Premier is less clear and would probably depend on where the properties are situated, which is not wholly clear on the papers before Court. [119] [104]  In these circumstances, the decision whether the Proclamation 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 the 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 constitutional 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, 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 Mokgoko 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 inspection report and survey maps of what is now referred 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 ventilate 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 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 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. S COWEN Judge, Land Court I agree. APPEARANCES: For the plaintiffs: MS Motshekga instructed by Noko Ramaboya Attorneys For first defendant: M Ntshangase instructed by SC Mdhluli Attorneys For the Commission: Mr Mathebula, State Attorney, Tshwane For the 1 st Amicus Curiae : Ms Phasha instructed by the South African Human Rights Commission For the 2 nd Amicus Curiae : Chief Nkonyama Melo for CONTRALESA (submissions) [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 DCJ 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 Mr 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 various points in this judgment and make provision for potential resultant disputes in my order. [7] The witnesses interchangeably used the vernacular and cadastral names of the properties and familiarity with both is required to understand the record. The plaintiffs’ 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 Richtersveld 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. [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. [13] Exhibit A (pp 1-206) also contains the pleadings with various attachments. Exhibit B contains 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).  Section 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 not 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.’ [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 classicus 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 at 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 element 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. [18] Measuring 2079 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 Portion 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). [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 hierarchy. 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. [22] Goedgelegen above n 4 para 35. [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. ## [26]Mahonisi Royal Family and Community and Others v Minister Of Rural Development and Land Reform and Others[2023] ZALCC 32 (Mahonisi) para 169. [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. [28] Exhibit D p 670. [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 tenants. [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. [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 native 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. [35] Above n 19 para 13. [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. [41] Exhibit D p 723. [42] Exhibit D p 723. [43] Exhibit D p 670. [44] Exhibit D p 685. [45] Above n 19. [46] See Part 3, Area No 22, District of Pretoria and Waterberg.  This is confirmed in correspondence of 21 May 1947 Exhibit D p 676. [47] Exhibit D p 677. [48] Ibid. [49] Exhibit D p 678. [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. [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. [58] The document is titled South African Native Trust Grant No 15195/1944 (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 5484/1923 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. [62] Record p 369. [63] Above n 19. [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. [65] Above n 19. [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 invalid on procedural grounds. [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 place 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 authorities 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. (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 shall, 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 issue was briefly canvassed inDangazele 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 for example the settlement described inGongqose 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 Keiskammahoek District of the 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.’ [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 issue 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 the 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.’ [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. [75] He confirmed that the portion of Bultfontein 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. [77] Under section 18 of the Bantu Homelands Constitution Act 21 of 1971, ‘… all laws 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. [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 establish 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 existence 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 consultation 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 customs 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 authority 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) …’ [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, para 69. [86] Para 66. [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 recognizes 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. [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. [95] Para 46. [96] Above n 24 para 49.  The material facts in that case are recounted in paras 21 to 27. [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 not also constitute a dispossession in respect of which restitution could be claimed. [98] See paras 69 and 70. [99] Exhibit D p 679. [100] See above para 51. [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. Although 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. [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 may 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 law 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 28(1)  Any traditional leader who was appointed as such in terms of applicable provincial legislation and was still recognized as a traditional leader immediately before the commencement of this Act, 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 this 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 provisions 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:  Provided 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 Traditional Leadership and Institutions Act 6 of 2005 (the Limpopo Act). [109] Mpumalanga Traditional Leadership and Governance Act 3 of 2005 (the Mpumalanga Act). [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) [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 City 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. ## [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 not the legal acts in issue are administrative action. [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 not 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. [115] Section 3(1) [116] Section 10 of the Constitution. [117] Section 9 of the Constitution. [118] Section 30 and 31 of the Constitution. [119] Zandfontein appears to be in Mpumalanga whereas the location of Bultfontein is difficult to estasblish. sino noindex make_database footer start