Mahonisi Royal Family and Community and Others v Minister Of Rural Development and Land Reform and Others (LCC29/2015) [2023] ZALCC 32 (10 October 2023)

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 >> 2023 >> [2023] ZALCC 32 | Noteup | LawCite sino index ## Mahonisi Royal Family and Community and Others v Minister Of Rural Development and Land Reform and Others (LCC29/2015) [2023] ZALCC 32 (10 October 2023) Mahonisi Royal Family and Community and Others v Minister Of Rural Development and Land Reform and Others (LCC29/2015) [2023] ZALCC 32 (10 October 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZALCC/Data/2023_32.html sino date 10 October 2023 IN THE LAND CLAIMS COURT OF SOUTH AFRICA HELD AT RANDBURG CASE NO: LCC29/2015 1.     REPORTABLE: YES / NO 2.     OF INTEREST TO OTHER JUDGES: YES / NO 3.     REVISED: YES / NO DATE: 10/10/2023 In the matter between MAHONISI ROYAL FAMILY AND COMMUNITY AND 22 OTHERS Plaintiff and MINISTER OF RURAL DEVELOPMENT AND LAND REFORM 1 st Defendant MAVAMBE TRADITIONAL COUNCIL 2 nd Defendant MUKHOMI TRADITIONAL COUNCIL 3 rd Defendant MPHAMBO TRADITIONAL COUNCIL 4 th Defendant SHIGAMANI TRADITIONAL COUNCIL 5 th Defendant DEPT. OF LAND REFORM AND RURAL DEVELOPMENT 6 th Defendant THE LIMPOPO REGIONAL LAND CLAIMS COMMISSIONER Participating Party JUDGMENT COWEN J and MUVANGUA AJ (Assessor B Padayachi in agreement) Introduction [1] In 1998, Sonto George Resenga lodged a claim for the restitution of land rights on behalf of the Mahonisi Community. In July 2009, the Regional Land Claims Commissioner for Limpopo (the Regional Commissioner) accepted the claim as prima facie valid and it was published in the Government Gazette in terms of section 11(1) of the Restitution of Land Rights Act 22 of 1994 (the Restitution Act). [1] In 2015, the Regional Commissioner referred the claim to this Court pursuant to a court order of 27 July 2016. The claimants, now the plaintiffs in these proceedings, are described as the Mahonisi Royal Family and Community and 22 others. We refer to them, for convenience, as the Mahonisi Community or the Mahonisi. [2] This case has distinctive features – the claimed land is communal land and the dispute is between black African peoples, each victims of South Africa’s racial past. The land history takes us back to the period when the apartheid government, which took power in 1948, sought to consolidate the already long-standing policy of residential racial segregation by creating separate 'countries' for Africans within South Africa. The Constitutional Court referred to this history in DVB Behuising [2] in these terms (footnotes omitted): ‘ [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.’ [3] This case brings into focus the movement of people during the processes preceding and ultimately leading to the establishment of Gazankulu and Venda in the 1970s. [3] The movements of African people leading to these events took place both within the territories that would become these homelands and between them. The case also raises important questions about how the forced amalgamation and redefinition of traditional communities as these processes unfolded impacted upon land rights. The specific events that concern us took place from the late 1950s and continued throughout the 1960s. [4] The land affected by the claim is found in the Chabane Local Municipality in the Vhembe District of Limpopo Province, lying between the town of Giyani (the former capital of the now defunct Gazankulu) and Thohoyandou, the capital of Limpopo Province. The Mahonisi Community are XiTsonga speaking people. They plead that they arrived in the affected area in the early 19 th century and settled on the claimed land, occupying it in a scattered fashion. They say that they used the land for residential, ploughing, livestock and grazing purposes and for burial sites, occupying the land as a distinct chieftancy. They say that they were dispossessed of their rights in land by way of processes that ensued under section 5 of the Black Administration Act 38 of 1927 (the 1927 Act), the Bantu Authorities Act 6 of 1951 (the 1951 Act) and the Group Areas Act 41 of 1950 as amended (the Group Areas Act). There were two main developments both of which, it is said, resulted in a deprivation of rights in land. First, the affected land was allocated by the State to neighbouring chieftancies, also XiTsonga speaking people, without consultation and without the consent of the Mahonisi Community. The effect was that the Mahonisi Community, and / or their land, were subsumed within these chieftancies against their will, with a resultant loss of rights in the community’s land. While there are several relevant legal events, the most pertinent in this regard is a Government Notice 1338 of 24 August 1962 (the August 1962 notice) which placed the Mahonisi under the authority of the Mavambe. Parts of the Mahonisi Community’s land was also placed under the authority of the third, fourth and fifth defendants, the Mukhomi, the Mphambo and the Shigamani under subsequent notices, referred to below. Secondly, and through forced removals, the Mahonisi were squeezed into the farm Seelig 206LT, which the Mahonisi Community still occupy, thereby losing much of their land and their rights in that land. [5] The Mahonisi Community’s claim is in connection with the following adjacent farms: Seelig 206 LT (Seelig), Molenje 204 LT (Molenje Portion 2), Knobnose Location 230 LT (Knobnose), Frank Mennie 229 LT (Frank Mennie); Natorp 227 LT (Natorp), Ireland 210 LT (Ireland), Krause 226 LT (Krause), Malamulele 234 LT (Malamulele) (consolidated from Jimmy Jones 205 LT (Jimmy Jones) and Van Duuren 207LT (Van Duuren)). [6] The plaintiffs plead that they are currently occupying the property Seelig and they are also using the northern portion of the farm Frank Mennie. [4] In their statement of claim, they seek a declaratory order that they have rights in the land that they occupy, restoration of rights in some of the land in the immediate vicinity of the currently occupied land and compensation for other portions of the claimed land which they say is not feasible to restore. The evidence, the dispute, its history and how it affects the participating parties, are best understood with reference to a map of the area which depicts the relative locations of the claimed and adjacent properties. We accordingly attach a copy of this map to this judgment as Annexure A. [5] [7] Certain of the claimed properties were the subject of competing claims including from certain defendants or other parties. Before the matter proceeded, however, the parties confirmed that these competing claims have largely been settled by way of financial compensation with the Commission for the Restitution of Land Rights (the Commission) or the Minister of Rural Development, Agriculture and Land Reform (the Minister, or first defendant). One competing claim has not been finalised. However, after hearing the parties on this issue both prior to the proceedings commencing and prior to delivery of judgment, we are minded to deliver judgment because the litigants cannot be left waiting indefinitely until such time that the competing claim has been finalised. In this case, the affected claimants were formally notified of and were aware of these proceedings; they were initially present in court and elected not to participate. They were and remain represented by the same legal representatives as the second to fifth defendants whose instructions are and remain that their client does not seek restoration but financial compensation. [6] The Commission has advised that although not yet formally confirmed, compensation is being pursued as a settlement option. [8] The second to fifth defendants oppose the plaintiffs’ claims. Their standing to do so is not in dispute. They deny any knowledge of the allegations the plaintiffs make and assert their own interests, as traditional communities, in certain of the claimed land. Before the commencement of the trial, it was foreshadowed that these defendants accept that members of the Mahonisi Community include families who are related to these defendants. They say that the Mahonisi Community opted to form part of their traditional communities over time and moved amongst them on a voluntary basis. They contend that the only cognizable dispossessions for purposes of restitution under the Restitution Act were forced removals that occurred in 1968 when TshiVenda speaking people were moved to the area that would become Venda and XiTsonga speaking people moved from other areas to the affected area, which became part of Gazankulu. The Mahonisi, they say, were not subjected to these removals. [9] The second defendant is the Mavambe Traditional Council (Mavambe), whose interest lies in the properties found in the northern and eastern portions of the claimed land. In the plea, the second defendant asserts an interest in Malamulele (consolidated from Van Duuren and Jimmy Jones) contending that it was the Mavambe, not the plaintiffs, that occupied that land historically. They also plead an interest in Ireland, and during the trial, they asserted an interest in Seelig and Krause. Moreover, the trial was run on the basis that the Mahonisi were always under the Mavambe and not a distinct community living under custom. [10] The third defendant is the Mukhomi Traditional Council (Mukhomi). They assert an interest in the western parts of the claimed land, specifically the affected portion of Knobnose and Molenje Portion 2. They deny that the plaintiffs have any interest in the former, and on the latter, they say that they occupied it before the Mahonisi Community arrived there. [11] The fourth defendant is the Mphambo Traditional Council (Mphambo). The fourth defendant pleads that Natorp, in the southern part of the claimed land, is part of land that they occupied under their own tribal authority and that it was not historically occupied by the plaintiffs. The plaintiffs claim only the northern portion of Natorp as appears from Annexure A. [12] The fifth defendant is the Shigamani Traditional Council. The fifth defendant pleads an interest in respect of the property Frank Mennie, also to the south. The plaintiffs only claim the northern portion of Frank Mennie as appears from Annexure A. The Shigamani were brought into the area only in 1968. [13] The remaining parties are State parties. The Minister is the first defendant and her department is the 6 th defendant. The Regional Commissioner is cited as the participating party. We refer to these parties collectively as the State defendants. [14] The trial was enrolled to proceed on 1 November 2022. On 1 November 2022, the second to fifth defendants applied to postpone the matter, an application that was subsequently withdrawn. [7] At the commencement of the trial, the Court confirmed the parties’ agreement that the matter would run only on the question of the validity of the claim, and be dealt with as a separated issue. [15] The parties called several witnesses to testify. The plaintiffs called two witnesses: Mr Phineas Ngoveni (Mr Ngoveni) and Mr Phineas Resenga (Mr Resenga). They also relied on the evidence of a town planner, Mr Jacques du Toit, who was responsible for collating information about the land ownership histories and mapping. The Court also admitted three affidavits of deceased persons who had formed part of the claimant community. [16] The second to fifth defendants each called witnesses to give evidence. The Mavambe Traditional Council called Mr Reginald Mabasa (Mr Mabasa) and Mr Gisane Napoleon Manganyi (Mr Manganyi). The Mukhomi Traditional Council, called Mr Khazamula Philimon Mahanga (Mr Mahanga). The Mphambo Traditional Council, called Mr Makhosane Lybrandt Mphambo (Mr Mphambo). The Shigamani Traditional Council called Mr Bohani Eddy Shigamani (Mr Shigamani). The parties completed the evidence on 10 November 2022. However, argument was presented only on 12 April 2023. We have explained the delay in delivering this judgment to the parties. Issues for determination [17] The issues for determination in this case arise under the Restitution Act, which gives effect to section 25(7) of the Constitution. Section 25(7) 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.’ [18] Section 2(1)(d) and (e) of the Restitution Act provide that: ‘ (1) A person shall be entitled to restitution of a right in land if:- … (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 racially discriminatory laws or practices and (e) the claim for such restitution is lodged not later than 31 December 1998’. [19] As indicated above, the relationship between the plaintiffs’ loss of land and their incorporation under the jurisdiction of other traditional communities is an issue that comes to the fore in this case. In this regard, parallel High Court proceedings that the Mahonisi Community initiated are relevant. On 26 May 2020, the Limpopo Local Division of the High Court in Thohoyandou, per Muller ADJP, delivered a judgment [8] in which it found that the Mahonisi is a traditional community. Materially, the order directs the Premier of Limpopo to recognise the Mahonisi Community as a traditional community in terms of section 3 of the Limpopo Traditional Leadership and Institutions Act 6 of 2005 (the Limpopo Act) and to recognise the successor of the deceased Sonto George Resenga as its traditional leader. At the time that evidence was given in this case, the Premier had sought to appeal the decision but by the time argument was presented in April 2023, the appeal had lapsed due to non-prosecution. Notably, according to the evidence, the second defendant, the Mavambe, did not appeal the decision. [9] [20] Against this background, and in order to determine whether the Mahonisi Community’s claim is valid, the following core issues (of both fact and law) arise for determination: 20.1 Whether the plaintiffs have established that they are a community as defined in the Restitution Act. We find that they have established that they are, and at relevant times were, a community living under customary rules of access to land they held in common. 20.2 Whether the plaintiffs have established that their status as a community living under custom was distinct from that of the Mavambe prior to the August 1962 Notice. We find that they have. 20.3 Whether the plaintiffs were dispossessed of rights in land as a result of racially discriminatory laws or practices. This requires consideration of two related sub-issues. 20.3.1 Whether such dispossession occurred when they relocated to Seelig, where – in the main – they currently reside. We conclude that it did both due to forced removals from claimed land and being squeezed on the land to which they were moved. 20.3.2 Whether such dispossession occurred when they or their land were incorporated under the traditional authority of the second to fifth defendants. [10] We conclude that it did. [21] During argument, the parties were in agreement that it is not necessary at this stage for the plaintiffs precisely to prove or the Court precisely to determine the boundaries of land in respect of which rights in land or land may have been lost. Rather, this is better left to the next stage. It should be noted, however, that the testimony made it clear that there has, historically, been both some fluidity and dispute in the boundaries between the communities before the Court and, save in respect of Frank Mennie, where the evidence is relatively clear, that there is some uncertainty about the precise boundaries of the land from which the plaintiffs were dispossessed. [22] In dealing with the evidence, this Court has admitted evidence that may not be admissible in another court of law, specifically hearsay evidence. Section 30 of the Restitution Act expressly authorises this course, leaving the Court to determine what weight appropriately to give the evidence. [11] Summary of evidence Evidence for the plaintiffs Mr Jacques du Toit’s evidence [23] Mr du Toit is a town planner, with a Master’s Degree in Town Planning from Stellenbosch University, who has been practising since 1981. Mr du Toit has provided the maps indicating clearly which parts of the claimed properties are under claim and has provided some information about their history of ownership. None of the properties were, at any time, under private ownership and they have always been State-owned land under different entitles. Mr du Toit testified that almost all of the claimed farms are owned by the Government of the Republic of South Africa, represented in these proceedings by the first defendant. The north portion of Seelig farm is owned by the Limpopo Government, which – despite service – opted not to participate in these proceedings. He confirmed that the relevant municipality does not own any of the affected properties. [24] Mr Du Toit did not deal with whether the claimed properties are properties that, at any time, belonged to the South African Native Trust (the Trust) established in terms of section 4 of the Native Trust and Land Act 18 of 1936 (the 1936 Act) or whether any of the properties were scheduled land under the Native Land Act 27 of 1913 (the 1913 Act) or released land under the 1936 Act. Mr Magezi Resenga’s evidence [12] [25] Mr Magezi Phineas Resenga testified that he is a senior member of the Resenga family, the Mahonisi royal family. He was born in 1953 and is currently 69 years of age. He is responsible, under custom, for providing day to-day traditional leadership in the Mahonisi Community. [26] The land claim was lodged in 1998 by Mr Sonto George Resenga, the witness’ late brother, before the cut-off date. [13] The Commission accepted the claim and it was published in the Government Gazette. [14] The Gazette was not challenged or disputed by anyone within 90 days of publication. The Commission conducted a verification process of the Mahonisi Community in 2016 and the community adopted the verification list [15] and confirmed that the families on the list were duly verified. The community also took a resolution to pursue both restoration of land and compensation as restitution. [16] [27] Mr Resenga gave a detailed account about how he acquired knowledge about the history of his family – he testified that when he was growing up, his elders spoke of that history. One of the elders that told him about the history of his people was John Phahlela Marahani. Another elder was Josias Mahonisi, who was Mr Resenga’s grandfather, who told him that Chief Mahonisi (the forebearer) arrived in 1840: he did not find anyone in the area when he arrived. He built a palace or head kraal at Xivhalwini (situated on Molenje Portion 2), and he was buried there when he died in 1911. The Court was shown a photograph of the gravesite, which is still there and which is located on Molenje Portion 2. [17] Under cross examination, Mr Resenga spoke of how imparting oral history inter- generationally is part of the tradition of the Mahonisi Community. He also testified that his father wrote some of this history and so too the witness’s late brother. He did not understand that he was obliged to bring these writings to Court and did not tell his lawyers about them. He said that they are filed at the tribal office. [28] Josias Mahonisi was the son of Chief Mahonisi, and is buried next to his father on Molenje Portion 2. [18] Josias was born in 1906 (or 1909) in Seelig. Mr Resenga could not recall when Josias died but he testified that Josias was 95 years old at the time of his death, and that his death was not a long time ago. He recalled that his family encountered challenges when they wanted to bury Josias. The Mavambe refused to grant them access to the gravesites, he said, so they had to go to Court for an order permitting them to have the funeral. He was pressed under cross-examination to produce a copy of the court order but was unable to do so. [29] At times during his testimony, Mr Resenga used locally known names for places. In this regard, he confirmed the content of a table prepared for trial which relates local names to the formal descriptions of the affected properties. [19] He ultimately confirmed that there were forced removals from all of these places. Before the forced removals, Mr Resenga’s family lived on Molenje Portion 2, as well as in Seelig, Van Duuren and McKechnie. [20] His family household was in Seelig, which is also where there are family graves. [21] He testified further that there are many Mahonisi graves on the affected properties. He gave the following examples in that regard with reference to photographs admitted into evidence. One Samuel Resenga, who is Mr Resenga’s father, is buried on Seelig. [22] The words ‘Hosi Mahonisi 3, Jingha Samuel Risenga are written on the gravestone indicating he was born in 1920 and was buried in 1953, having passed away that year. Mr Resenga’s mother, Mihlaba Gabasa Ngoveni, was born in 1930 in Seelig, also into the Mahonisi Community. She was buried there too. [23] There is also a gravestone in the same area for Kavuyu Tsatsawane, who was born on 15 August 1930, also into the Mahonisi Community and who died and was buried in Seelig in 2006. [24] And a Samuel Hasane Ngoveni, [25] who was born in 1918 on Van Duuren, is buried in Seelig in 2017. [26] This is just a sample, according to Mr Resenga. There are many other graves on these properties. Under cross-examination Mr Resenga confirmed that there are many Mahonisi graves on Molenje Portion 2. Another grave referred to was that of a John Marahani, born in 1906 and deceased in 2002, who is said to rest at Van Duuren. [30] On how land was dealt with by the Mahonisi Community, the evidence was this: Before the forced removal, the Mahonisi lived scattered across the affected area in different places, such as Xivhalwini (on Molenje Portion 2) and Mawaya (a reference to Seelig). In order to access land, one would go to the Chief’s kraal. Access to the land was given by the Chief together with the Indunas. Different portions were allocated for residence, for grazing and for ploughing under customary law as known by those living as the Mahonisi. Under cross-examination, Mr Resenga testified that Mahonisi and his people were recognised as a traditional community / tribe by the government of the time, and had the status of a chieftaincy before the forced removals. He testified that he knew this history because it was told to him when he was growing up. [31] Before the forced removals, some members of the Mahonisi Community lived on Molenje Portion 2. They used grazing to the west on land in Knobnose. Archival maps from 1936 and 1955 [27] reflect the presence of the Mahonisi on these properties, and were confirmed by the witness. Malamulele (formerly Jimmy Jones and Van Duuren), Ireland and Seelig were also Mahonisi land. The Mahonisi were also on the northern portion of Frank Mennie, the northern portion of Natorp and on Krause (used for grazing). The land was used for residential purposes, grazing and cultivation. During the removals, people were moved from all of these areas to the part of Seelig where Mahonisi village is now found (depicted on Annexure A as Mahonisiville). That is where the Mahonisi people now reside, although some moved to other neighbouring villages. [32] The evidence was that Josias did not land up in Seelig. Under cross-examination, Mr Resenga testified that Josias Mahonisi lived in Phaphazela (located on Knobnose) before he died. He explained that Josias moved there long ago, to be with one of his wives. That he moved there was not out of the ordinary – there are Mahonisi living in Phaphazela, and it falls within the area under claim. [33] Mr Resenga testified that the Mahonisi Community lost its status as a Chieftaincy in 1962. That is when they were told that their Chief was no longer a Chief, but would get the status of an Induna under Mavambe, the third defendant. He testified that this was forced on the Mahonisi by the apartheid government and its sympathisers. Their status as an independent Chieftancy is the subject of the parallel legal proceedings in the Thohoyandou High Court, which found in their favour, as indicated above. [28] Under cross examination, it was put to Mr Resenga that Mr George Sonto Mohonisi accepted Mavambe as his Chief when he accepted the position as Induna. Mr Resenga disputed this emphatically, based on his knowledge of his family, saying that ‘he went there because he had been forced by the apartheid regime.’ In short, the evidence was that he became an Induna after the incorporation of the Mahonisi under the Mavambe, one of 15 Indunas. He was thus demoted as a Chief and forced to stay at Mavambe, becoming an Induna. [34] On the forced removals, Mr Resenga testified that he experienced the forced removals first hand. He narrated the story of their removal as follows: 34.1 At the time of the forced removals he was staying in Seelig (its southern part). He was forcibly moved to the northern part of Seelig. 34.2 They were forced to move from where they lived by the police and the then-government to the northern part – where the town now is. There were trucks and they would take their belongings, load them onto a truck and place you where they wanted you to be. Those who refused to be moved had their homes demolished. There was no explanation provided to them as to why they were being moved. 34.3 The removals happened over a period of time – people were removed in different years. They were moved to Seelig. The first removals were in 1960 and there were other removals in 1963, 1964 and 1966. 34.4 It was his evidence that that they were dispossessed of land, and that this was confirmed and conceded in the referral report of the Limpopo land claim commissioner. [35] Mr Resenga testified further that there was a primary school called the Mahonisi Primary School in Molenje Portion 2, which is where he started his schooling. In 1965, when Mr Resenga was in standard 2, that school was demolished, and they had to attend school under a tree, in the winter month of June. Under cross-examination, Mr Resenga confirmed that the school was demolished before the removals of 1968 and that there have been no schools at Molenje Portion 2 since then. [29] [36] Before they were removed, the Mahonisi Community lived together with TshiVenda speaking people. But in 1968, the TshiVenda speaking people amongst them were told to move to areas where other TshiVenda speaking people resided. The same thing happened to the XiTsonga speaking people who lived in areas that were to be inhabited by TshiVenda speaking people. The TshiVenda speaking people’s homes were demolished in the same way that the Mahonisi homes were demolished. People were loaded on trucks and dumped somewhere, possibly at the house of a TshiVenda speaking person who had been removed by force too. Once dumped, they were told, “You stay here.” He described the impact of the removals as “very, very painful”. [37] After the removals, they could not go to the land from which they were moved, even to collect firewood or to plough. They would be arrested if they did, and their woods and pangas would be taken away. The Mahonisi people were moved to Seelig and lived in the actual village of Seelig, not in other parts of the claimed land as they previously had done. [38] Mr Resenga testified about the relationship between the Mahonisi Community and the second to fifth defendants and their respective land and how it was affected by the processes that unfolded in the 1950s and 1960s. As indicated, Mr Resenga testified that the Mahonisi people arrived on the claimed land in 1840. [39] During his evidence in chief, Mr Resenga testified that the Mavambe arrived in 1920, from Knobnose. However, he admitted under cross examination that he did not know exactly when the Mavambe arrived, and suggested they could have arrived in the late 1800s. However, he knew that the Mahonisi and the Mavambe did not arrive at the same time, and neither did the Mukhomi. The Mahonisi people arrived there first, he said. [40] He testified further that the Mavambe’s land was Molenje Portion 1, and they moved from there to the place now called Mavambe Location. When the Mahonisi people lived in Molenje Portion 2, the Mavambe lived in Molenje Portion 1 – they were neighbours but on different land. According to Mr Resenga, the Mavambe’s land is Molenje Portion 1 and Mavambe Location, now extending into the property formerly known as Jimmy Jones. [41] The Mavambe Location was allocated to Chief Mavambe by a 1958 Notice (the 1958 Notice). [30] It is headed: ‘Definition of the Area of the Section of the Shangaan Tribe under Chief John Shirilele Mavambe and establishment of the Mavambe Tribal Authority, Sibasa District.’ Materially for present purposes, its effect was to define the area of the Shangaan Tribe under Chief Mavambe as consisting of Mavambe Location No 34, [31] and ‘to establish a Bantu Tribal Authority’ for the section of the Shangaan Tribe resident there to be known as the Mavambe Tribal Authority under Chief John Shirilele Mavambe. The 1958 Proclamation did not affect the Mahonisi Community or their land. [42] The allocation of Mahonisi land to the Mavambe was effected through the 1962 Notice, although the Mahonisi people were never told or consulted about the Notice, nor about the reallocation of their land to the Mavambe. Nevertheless, the apartheid government placed the Mahonisi under Chief Mavambe as headman. S.G. Resenga was demoted and had to serve as an Indunda under the Mavambe. It was only in 2020 that the Mahonisi finally got a judgment confirming that they again have status as an independent chieftaincy – now referred to as a traditional community with a traditional leader. [43] The 1962 Notice is dated 24 August 1962 and is headed ‘Redefinition of the Area of the Shangaan Tribe and the Mavambe Tribal Authority under Chief John Shirilele Mavambe, Sibasa District and Redetermination of the Number of Councillers – amendment of Government Notice No 412 of 21 March 1958. [32] It records the then State President’s approval, in terms of section 5(1)(a) of the 1927 Act to substitute the schedule of the 1958 Notice with a new schedule. The effect was to substantially increase the area that fell under Chief Mavambe and the Mavambe Tribal Authority. Mr Resenga confirmed that land referred to in the Schedule to the 1962 Proclamation includes the land currently under the Mavambe and that is subject to the plaintiffs’ claim. It thus includes the relevant parts of Seelig, Malamulele, Krause and Ireland. These properties lie in the north and north-western portions of the claimed land as appears from the map attached as Annexure A. [44] After the reallocation of their land, the Mavambe Traditional Council had 15 villages under its leadership. George Sonto Mahonisi was made an Induna at one of those villages – Mahonisi village on Seelig. [45] The properties known as Knobnose and Molenje Portion 2 bring into play the relationship between the Mahonisi Community and the third defendant, the Mukhomi. Mr Resenga testified that the importance of Molenje Portion 2 to the Mahonisi lies in the fact their forebearers were buried there. The Mahonisi used Molenje Portion 2 for residential purposes and, extending into Knobnose, for grazing. In about 1920, some members of the Mukhomi ‘jumped across’ and were allocated stands initially on Knobnose and then also on its boundary with Molenje Portion 2. Under cross-examination, Mr Resenga could not and did not dispute that the Mukhomi would have graves on Molenje Portion 2. [46] Mahonisi land on these properties (Molenje Portion 2 and Knobnose) was allocated to the Mukhomi Traditional Council, also in 1962, without consultation or consent having been sought from the Mahonisi. This was effected through the September 1962 Notice, being Government Notice 1556 of 21 September 1962, [33] which is headed ‘Definition of the Area of the Shangaan Tribe and the Guwela Tribal Authority, Sibasa District’. The Gazette records the State President’s decision in terms of section 5(1)(a) of the 1927 Act to define the area of the Shangaan Tribe in accordance with the accompanying Schedule and to establish a Tribal Authority in terms of section 2 of the 1951 Act in respect of ‘the area assigned to headman John Masungwini Mikhomi’. The witness confirmed that the area included in the Schedule includes Molenje Portion 2 and the areas of Knobnose that had been Mahonisi land. [47] The fifth defendant, the Shigamani, currently reside on part of Frank Mennie. Historically, they lived in Vuwani, about 40 km away. The Shigamani were brought to the area in 1968 when the apartheid government separated the TshiVenda speaking people from XiTsonga speaking people. Mr Resenga testified that before they arrived, the Mahonisi and the Netshitungulwani [34] lived on Frank Mennie, with the Mahonisi in its northern parts. [35] The Netshitungulwani were moved to where the Shigamani had previously lived. The Shigamani have their own claim for that land. In 1980, however, there was a decision to divide the farm into its northern and southern parts. [48] Mr Resenga was cross-examined about the impact of the removals on the Mahonisi’s customary or traditional way of life. He accepted that the customary way of living still persists, but he explained that some things have changed. For example, the Mahonisi used to have substantial land and now their land is small. They are many, which makes it challenging to keep livestock which they cannot now afford. He confirmed too that his testimony about the loss of land was the loss of land of the Mahonisi tribe. During his cross examination it was put to him that the issue that arose with the burial of Josiah was that there was an attempt to bury without consulting with the Mavambe. It was quite clear from the testimony that the permission of the Mavambe is required for burials and the Mavambe has to sanction or consent to Mahonisi land developments and other land uses. Mr Phineas Ngoveni’s evidence [49] Mr Phineas Ngoveni testified that he is 70 years old and resides at Mahonisi Village. Like Mr Resenga, he testified that he knows the Mahonisi history through oral histories – he learnt it from his grandfather, who was the last born of Chief Mahonisi. He also learnt it through Mr John Marahani Phahlela. Mr Ngoveni lived in Seelig before the forced removals, at a place called Thonjani in the south. He personally experienced the forced removals. [50] According to Mr Ngoveni, when the Mahonisi first arrived in the area they settled in Xivhalwini, (on Molenje Portion 2). There are graves there, including of Chief Mahonisi and his last born, Josias Mahonisi. Knobnose to the west, which the Mukhomi people now occupy, was grazing land for livestock of the Mahonisi. [51] With reference to the table introduced in evidence by Mr Resenga correlating the formal names of the properties with their locally known names, [36] Mr Ngoveni explained that it was Chief Mahonisi who named the places together with his people. Mr Ngoveni testified that save for the imposed names of the properties, there are no other known names. He knows the land well and can point out the places as named and the boundaries of the Mahonisi historical land. He testified further that he knows the families who used to reside on and use these properties. [37] 51.1 In relation to Molenje Portion 2 – specifically the area known as Xivhalwini, the evidence was that the people who resided there were residing with Chief Mahonisi. The names of families from that area include the Maphaphu, Ndhuma, Nwamanyangi, Xivarati, Bila, N’wa-Xikundu, Jivindhava (who stayed near Mahonisi School), Malateke, amongst many others including the Mahonisi royal family. 51.2 In relation to the south-east of Molenje Portion 2 – known as Huka, the evidence was that there were fewer families. The witness named the Xipengele family, the Ndavani, and mentioned there were others. 51.3 Regarding Knobose, the witness confirmed it was used for grazing cattle from Xivhalwini. 51.4 Regarding an area known as Ka-Mathabatha – found in the south-western part of Seelig – the witness mentioned the Siphetula family, the Mphahlo amongst others. He also mentioned the N’wa-Manyangi, Gobela and the Mboyi, who followed. 51.5 Regarding an area known as Dumayavu – also in the south-western part of Seelig – the witness mentioned a few families: Dumayavu , Xibotani (Valambya) , Xihunga-vuluva and the Makhahle, amongst others. 51.6 Regarding an area known as Vhumayingwe, also in the south-western part of Seelig, the witness mentioned the children of Xibotani. He could not recall their surnames. 51.7 Regarding the Shingwedzi dam – now known as the Mahonisi dam in the south of Seelig, the witness mentioned the N’wa-maphahla, Makhuva and Xinyangani. He also mentioned the Mavuyani family. 51.8 Regarding an area known as Thanganyika, in the south-east of Seelig, the witness mentioned the Maxali family, and the children of Mkhacani Mahonisi, followed by the Madinani. During testimony the witness pointed out that the area is in fact known as Thanganyini, which refers to the thigh of your mother. 51.9 Regarding Thonjani, in the south of Seelig, the witness mentioned the Chavani family (being his family), the Matsilele family, the family of Hlengani wa nkambi, the Mphaya family and the Ku-phema family amongst others. 51.10 The witness then turned to the northern part of Frank Mennie, which is known as Ntsungeni wa Xingwedzi, mentioning the Ndavani family, the Xiitarhi, the Milayi and others. 51.11 Turning to the northern portion of Natorp, known as Xikowa xa Nkamundheni, the witness mentioned the child of Mahonisi, Nkhamundheni, later joined by the Ganunu family. 51.12 On the west portion of Ireland, known as Ka-Marahani, Van Duuren (known as Ximuwini xa Mkhacani) and Jimmy Jones (known as JiPi or Jim Jones), there was the Hlavangwani and Mukoki families, Ndhambi, Chavalala , Bila , Mphongola , Mbiteni , John Phahlele Marahani, Mkhacani Mahonisi. 51.13 Regarding Krause – known as Gigi grazing camp – the evidence was that no families were living there but there is a beacon with a piece of corrugated iron with three angles: on the one side is the Mahonisi land. It was used for grazing by the Bila, the Mkoki and by John Phahlela Marahani. 51.14 The northern part of Seelig was known as Ngholombhi, the witness testified that there were some families living there, mentioning the Majoko and the Mxiyi family and a section where the Ngoberi were staying. 51.15 In respect of the centre of Seelig, known as Mawaya or Crowland, Jiwawa Mahonisi was staying there (he is the fourth son of Chief Mahonisi), followed by Manavele. [52] Mr Ngoveni also pointed out that there is a baobab tree next to the “ruin of Mkhacani Mahonisi”, which belonged to the Mahonisi Community before removals. [38] The tree is along the road to Giyani, on JiPi. It is understood that his grandfather planted the tree. [39] [53] Mr Ngoveni was referred to a list of families and graves detailed in a document admitted as Exhibit N. Exhibit N lists 35 family names. Some were mentioned in the above testimony. Others not. The witness confirmed that all these families are from the Mahonisi community but emphasised that there are many other families too, who are not on the list. [40] The list refers to graves of the mentioned families. Mr Ngoveni explained that the graves are scattered all over close to where they had resided. The graves are not centralised in one place. Mr Ngoveni explained that the list had been prepared by Chief Mahonisi IV, assisted by himself and Mr Resenga. In the process they had engaged some of the families but Mr Ngoveni confirmed his personal knowledge of its content. [54] Mr Ngoveni testified about the communities which neighboured the Mahonisi before the forced removals and where they lived. He started on the southern side of the Mahonisi land. [55] Mr Ngoveni testified that the Netshitungulwani were residing to the south before the removals. Now the Shigamani are living there. Both communities were forcibly removed. The Netshitungulwani were moved to be with the TshiVenda speaking people at Pfukani when the Shigamani came to live with the XiTsonga speaking people at present-day Shigamani. These forced removals happened in 1968. It was put to Mr Ngoveni during his cross-examination that the movements between the Shigamani and the Netshitungulwani were voluntary, a ‘gentleman’s agreement’. Mr Ngoveni firmly disputed this, explaining that he was present, and there were GGs (referring to the notorious trucks used in forced removals) with people loaded onto them and removed. [56] To the south-east, the Mbathlos were residing. To the east, the Mahonisi were neighboured by the Madonzi community. To the north, the Shigalo community, to the north-west were the Mavambe community. To the west were the Phaphazela community and to the south-west, the Shirindi community. There was also a neighbouring community known as the Malamulas. [57] Like the Shigamani, the Mphambo community were only brought to the area (specifically to the land of the Mbathlo community in the south-east) in 1968. Before the forced removals, they Mphambo had stayed in the Vuwani area. The farm given to Mphambo was Natorp. But the Mahonisi were, before then, using the part of Natorp in the north that they are now claiming. The Mahonisi area and the Mbathlo area were divided by a furrow (later referred to as a river). The Mahonisi lost that land (the northern part of Natorp) when they lost their chieftaincy and were incorporated into the Mavambe. That part of Natorp was then included in the Mavambe territory, (although later incorporated into the Mphambo territory). The boundary with the Mbathlo is also depicted with a triangular marker on Gigi (Krause) and extends to Ireland. These areas were Mahonisi land at the time the Mbathlo were there: the boundaries were well-known. This is the reason why they are claiming that area. [58] As regards the above, the witness was referred to a Government Notice 1185 of 11 July 1969 which deals with the establishment of the Hlavekisa-Mphambo, Shigamani and Mtititi Community Authorities – Sibasa District. [41] The notice records that the State President established these authorities under section 2 of the 1951 Act for the ‘Bantu areas assigned to them, as described in the accompanying schedule.’ Relevant for present purposes is paragraphs (a) and (b) of the Schedule which reads: ‘ (a) Hlavekisa-Mphambo Community Authority – Natorp 227 LT; (b) Shigamani Community Authority – Frank Mennie 229 LT and McKechnie 228 LT.’ [59] In respect of Molenje Portion 2, Mr Ngoveni explained that the Mukhomi people were brought to the Mahonisi land by the white people, in 1920. They were chased away from where they lived by one Chief Piet Booi. During the Sibasa regime, the Mukhomi people asked Mr Ngoveni’s grandfather Mduwazi to accommodate them. That is how they ended up on Mahonisi land. [60] Mr Ngoveni’s evidence was further that there were members of the Mahonisi Community who lived on Van Duuren. John Marahani Phahlela (who was born in the house of Mr Ngoveni’s grandfather) lived in the west portion of Van Duuren / Ireland). Mr Marahani was born in 1906. He passed in October 2002. He was the first farmer of Mahonisi, and resided on Mahonisi land. He had fruit trees – mangoes, oranges and papayas. He wanted compensation for these trees in order to move and the apartheid government was not able to compensate him. So he was never physically moved. He continued to occupy that land. However, the apartheid government placed him under the authority of the Mavambe and later the Mphambo. [61] There was emphasis placed on the Mahonisi’s tax number, which was 121. The Mavambe’s tax number was, according to the witness, 129. The numbers, it was suggested, confirms that the Mahonisi were a separate chieftancy and their order suggests that they arrived first. [62] As indicated, Mr Ngoveni testified that he personally experienced the forced removals. His evidence was that on the day that they were forcibly removed, they woke up in the morning and saw white and black police, who shouted to them to leave. The police used tractors to demolish their houses, and said that if the people did not leave, they would be loaded on the trucks and taken far away. They were not given notice prior to the removals. He was a young boy at the time, probably about 14 years old. He recalled that on the day, his mother was at home but his father was in Johannesburg. He recounted that the police took them across the river, and told them to settle where they were taken. They were taken to another part of Seelig, called Mawaya and they slept there for two weeks without any shelter. Before the removals, Mr Ngoveni had stayed in the south of Seelig, and now he stays in the north of Seelig. He testified that they were treated poorly throughout the ordeal, like animals being led. [63] Under cross-examination, Mr Ngoveni confirmed that when he spoke of the forced removals he experienced, he was referring to those that occurred in 1966, which was when those from the Mahonisi Community where he was staying were forcibly removed. Others had been removed in 1963 and 1964 from Molenje Portion 2 and northern Frank Mennie. Mr Ngoveni also testified that after the Mahonisi school was demolished, some people realised that they were going to be taken far away, so they ‘ran to Mukhomi’ and opted rather to join him, accepting his authority. Some from Frank Mennie did the same as they did not want to be forcibly moved to Seelig. Others went to where they were being taken including Seelig. [64] Under cross examination, Mr Ngoveni reiterated that those who were living at Natorp were moved to Seelig or Jimmy Jones. Those living in Van Duuren were moved to Jimmy Jones. All those who went to Seelig and Jimmy Jones were also forced to accept and pay homage to the Mavambe Traditional Council. In this regard, he testified that after the forced removals, people at Mahonisi village and Jimmy Jones were forced, beaten up and ordered to pay tax under Mavambe number 129 instead of the Mahonisi tax number 121. Mr Ngoveni strenuously disputed that that Seelig, Malamulele 234 LT (Jimmy Jones and Van Duuren) and Ireland were originally areas of Chief Mavambe. He testified that these lands were the land of the Mahonisi Community, and Chief Mavambe’s land is at Molenje Portion 1 and Molenje Location. The testimony was that Chief Mavambe was given the Mahonisi land by the apartheid government. [65] Under cross-examination, it was put to Mr Ngoveni that the Mahonisi people agreed to and accepted the authority of Mavambe. This the witness denied. His evidence was that the Mavambe authority was imposed onto the Mahonisi people. Mr Ngoveni gave evidence that being under the Mavambe authority is oppressive. They cannot even build a school without permission from the Mavambe. George Sonto High School at Mahonisi village was built around 1994 or 1996 and its construction was riddled with strife – at the time of its construction, Chief George Mavambe of the Mavambe Traditional Council told them that they did not have permission to build the school. Similarly, the Mavambe would not allow them to build water tanks, as they said the land was not theirs, or run their own cultural institutions such as circumcision schools. [66] Mr Ngoveni testified (in chief and under cross examination) that dispossession affected the Mahonisi people as follows: 66.1 It took away their chieftaincy; 66.2 They had no documents or letters of ownership, and could therefore not do anything without the consent of either the Mavambe or the Mukhomi. They could not even open a school without the permission of the Mavambe. They had challenges even building water tanks. They also cannot develop the land, as prospective investors need to see letters of land ownership. 66.3 Even now, they say they are living in Mahonisi village forcibly. They are squeezed into that space and have no say over the stands. 66.4 They have no access to or control over any other area of land that they occupy or previously occupied. Permission must be obtained from the Mavambe in the areas they regarded as their territory. 66.5 They felt pain and naked, stripped of respect and their dignity. [67] That permission is required from the Mavambe to use and develop land was not in dispute. Rather it was suggested under cross examination that the claim is not about land but a revolt or protestation against Mavambe authority. Mr Ngoveni referred to the litigation regarding the chieftancy and reiterated that he will not kneel before a chief who is his equal. It was further put to Mr Ngoveni that the movements that took place were voluntary movements. Mr Ngoveni firmly rejected this version, reiterating that the removals were forced and their integration into the Mavambe community, and resultant loss of chieftaincy, coerced. The three affidavits of deceased claimants [68] As indicated above, the Court admitted three affidavits of deceased persons who are part of the claimant community as evidence in the proceedings. [69] The first affidavit (Exhibit A) is that of Mr Sonto George Risenga dated 22 February 2017. Mr George Risenga was regarded as the Mahonisi traditional leader. He died on 30 August 2017. According to the affidavit, Mr Risenga lodged and signed the claim forms. The affidavit details the processes of forced removals, relocations and subjection to the authority of neighbouring traditional authorities including the Mavambe. The deponent was born in 1949, and – in the 1960s – when the forced removals took place, was still young, and a cattle herder. He too witnessed the removals. His evidence effectively confirms the broad import of the other witnesses’ testimony and accordingly, while written in vivid and evocative language, we do not detail it further. [70] There are other ways the affidavit is useful. It explains with clarity how Molenje Portion 2 – the original home of the chieftaincy – lies at the centre of the Mahonisi heritage and provides a clear picture of how the Mahonisi people were scattered across the claimed land before being squeezed into the Seelig centre. He speaks of the Mahonisi Community as including Venda families and the pain associated with being separated when the removals happened. He clarifies certain matters too. For example, he explains that it was Hosi Mahonisi 1 who initially allocated land to the Marahani family on Ireland. He also partly contextualises archival documentation concerning the Mahonisi school. Notably, there are certain inconsistencies between the affidavit contents and certain testimony. For example, there is a different account of how the burial of the late Josiah Mahonisi was resolved. However, differences of this sort do not undermine the central narrative about historical land use and alleged dispossession. [71] The second affidavit (Exhibit B) is that of Mr Risimati Daniel Ndobe dated 12 October 2018. The deponent died on 13 January 2021. Mr Ndobe was born in 1944 at Mahonisi village in the north of Seelig. His affidavit refers to the demolition of the Mahonisi primary school that was located on Molenje Portion 2. He explains that his family was forcefully removed by police from the north of Seelig to the centre of Seelig in 1963 when he was about 20 years old. He says: ‘we were forced to demolish our own houses by police.’ He too refers to the separation of the TshiVenda speaking people from the Mahonisi as painful. He refers to the African names used to describe the Mahonisi land. He refers to the Mahonisi graves that can be found in northern Seelig. The remainder of his affidavit continues with a narrative similarly consistent with the witnesses who testified. [72] The third affidavit (Exhibit C) is that of Mr Eddie Mkathlani Chauke. Mr Chauke died on 13 January 2021. He was born in 1950 on the farm Van Duuren under the Mahonisi. He explains that his family were forcefully removed by police from that farm in 1965 when he was about 15 years old. He speaks of the Marahani family and mentions other Mahonisi families from the area. His family and others were moved to Jimmy Jones and placed under the Mavambe. He too confirms that Jimmy Jones was Mahonisi land before it was allocated to the Mavambe by the apartheid government. Mr Chauke refers to graves in the area of Mahonisi people. His affidavit too is consistent with the narrative of the witnesses who testified. [73] Each of these deceased witnesses were older, or of similar age, to the witnesses who testified. It is only because the land claim has been so significantly delayed that these witnesses could not ultimately testify. Their affidavits are, however, useful, in that they provide an account of the experience of families from different parts of the area claimed as the Mahonisi land. The accounts cohere, not only with each other, but with the testimony of the two witnesses. The affidavits also clarify features of the evidence. Evidence for the defendants Mr Manganyi’s evidence for the Mavambe Traditional Council [74] Mr Manganyi testified that he was born into the Mavambe Royal Family in 1962. He stays at the Head Kraal. His late father was the Acting Chief Morris Mavambe, the younger brother of the former Chief Shirilele. He is also related to former Acting Chief of Mavambe, George Hasane Manganyi. He testified that he does not know when the Mavambe came to this part of the country, but his grandfather’s father’s grave is at the Head Kraal. He estimated that the Mavambe may have settled in this part of the country in the 1700s. They moved from Ripangwini due to natural disasters, and moved to where they stay now in the 1950s and 1960s. He testified that there are several signs that prove the Mavambe have had the land for a long time. As examples, he testified that there remain several related families in the area, and there are graves, which is evidence that have been staying there. Some of the graves are unmarked, or marked by something that was planted. [75] Mr Manganyi testified that the installation of chiefs and indunas was done by the then government of Gazankulu. He says the Mahonisi did not have their own tribal authority and they were always subjects of the Mavambe Traditional Authority. He denied that the Mavambe were imposed on the Mahonisi by the apartheid government. [76] Mr Manganyi further testified that the present chief of the Mavambe is Chief Patrick II, and there are 15 tribal villages that fall under the Mavambe Traditional Authority. Mahonisi is one of them. Mr Manganyi testified that locations or villages are named after their Induna, but that does not mean the land belongs to them. He testified that the land belongs to the Chief. He also testified that Mahonisi was an Induna, and that is why the community is named after them. [77] Mr Manganyi testified that claimed areas such as Ireland, Van Duuren, Seelig and ‘Corla’ (sic) fall under the Mavambe’s land and do not belong to the Mahonisi people. Malamulele township falls under the jurisdiction of the Mavambe, and Krause is on the border between Mavambe and Shigamani. Mr Manganyi testified that graves do not mean land ownership, so the fact that the Mahonisi people have several graves on the land does not mean they own it. [78] During his evidence in chief, Mr Ncongwane showed Mr Manganyi the table of property and place names admitted into evidence as Exhibit I, with the purpose of asking him to identify the names that he recognised. His evidence was that he knew Xhivalwini which was known by some as Santa Dehosi. He also gave evidence that Molenje was divided into two portions – Portion 1 and Portion 2. According to him, Molenje (in its full extent) was shared by the Mavambe, Mukhomi and the Ramobas. Mr Manyangi did not know the name Huka, which the plaintiffs associate with the south-eastern portion of Molenje portion 2. Mr Mangayi did, however, appear to have knowledge of at least most of the remaining African names for the properties. He noted that the Shingwedzi dam was only built in 1968 to benefit the Mphambo and the Shigamani. He was aware of some of the names, or similar names. Regarding the area in south-east Seelig, he testified that it is now empty (since people are living in the town) but is known as Thangaranini. He confirmed the area known as Thonjane in the south of Seelig is unoccupied. His testimony suggested that some of the vernacular names used to describe areas refer to family names historically associated with the area. He testified about the baobab tree intimating that no one planted the baobabs in the area and that an age analysis of the trees would assist. On Mr John Maharani, Mr Manganyi testified that Mr Maharani lived on the west portion of Ireland before he died, and that he belonged to the Mavambe community. The witness confirmed that the reason why he was never moved is because of his fruit trees: government was not willing to compensate him. He provided an alternate name for north Seelig (where the Mahonisi call it Ngholombi, the witness testified that local people call it Washinosolo (a reference to the elderly wife of Chief Makhulu). [79] Ultimately he testified that all land under the formal territory of the Mavambe Traditional Authority is Mavambe and not Mahonisi land. He did not comment on land that is currently under other defendants’ authority. However, during his evidence in chief, he testified that the process of demarcating territories during the 1960s, did result in losses and gains of territory. He did not know when the beacons were put up. He only knows the Mahonisi as the subjects of Mavambe, but ultimately accepted that given his age, he did not have knowledge of their full history. [80] Under cross examination, the plaintiffs’ counsel pointed out that the land that the Mavambe claimed under the Restitution Act was Molenje Portion 1, which – the Mahonisi agree – was Mavambe land. Counsel referred the witness to the relevant claim forms which refers to forced removals. The witness did not dispute that Molenje Portion 1 (as claimed) was land of the Mavambe people but said it was claimed by the Chief and was not the only Mavambe land. Those who were removed from there, he accepted, have been compensated. [81] The plaintiffs’ counsel also pointed out that the various areas listed by Mr Manganyi as belonging to the Mavambe are not included in the 1958 Gazette which refers only to ‘Mavambe Location No 34’. The witness said he could not confirm the areas, because he did not know when the demarcations were done. This was prior to the witness being born. However, the witness maintained that the Mavambe land had always included the broader territory – including the rural parts – that now falls under its territorial jurisdiction pursuant to the 1962 Gazette. Interestingly, during this line of questioning, the witness pointed out that as far as he is aware, the person referred to in the Gazette – Chief John Shirlele Mabambwe passed in 1957, before the publication of the Gazettes recognising his authority. In 1962, the witness’ father, Morris Msisinyane Manganyi was Chief of the Mavambe. [82] According to Mr Manganyi, the Mahonisi’s first interaction with the Mavambe was in 1978, when George Sonto was ousted and was told that he needs to work under the Mavambe leadership. He testified further that he remembers that George Sonto’s father used to come to Head Kraal to discuss issues of leadership, because Mahonisi was a headman of the Mavambe. Mr Manganyi testified that the Mahonisi people never had their own tribal authority, and further that George Sonto would come to the Mavambe Tribal Authority to work. In about 2012, his younger sister Rose would come to work on his behalf, as an alternate, when he had become blind. The Mavambe people used to work “hand in glove” with the Mahonisi, but the Mahonisi stopped coming to the Tribal Authority when they launched their land claim. [83] In response to the assertion that the Mavambe got their status through favour with the apartheid government, the Mr Manganyi said that he is not aware of anyone being forced to be subjected to others. He questioned why, if the Mahonisi in fact arrived before the Mavambe, they were not made chiefs. He said there is no proof that the Mavambe demoted them. Under cross- examination, the witness accepted that the Mahonisi historically had a separate tax number (121) to the Mavambe (129) and admitted that the other headmen under the Mavambe did not have their own tax numbers. However, he disputed that this shows that the Mahonisi were an independent chieftancy. He stated that if they had been imposed there would have been a revolt. He also reiterated that tax numbers were only allocated by the government in recent history – as he understands it since 1913. Thus, he continued that nothing can be made of the numerical order in which tax numbers were given. [84] On the forced removals, Mr Manganyi testified that he was aware that there were removals that occurred in the 1960s but asserted that people were not removed by force. People would just move to another locality within the area where they were staying, sometimes because the government told them, or the chief, to relocate. He did not know the reason, only that they had been given the instruction by the government. His evidence was that this fluid migration did not cause division, because traditional African dwellings are built of mud, poles and grass, not cement and are easy and inexpensive to move. So Government never compensated them for doing that. [85] That notwithstanding, he testified that the removals in 1968/69 were different, because the government loaded people onto trucks and moved them. The reason was that under the Group Areas Act, people were moved from TshiVenda to Gazankulu and vice versa, in order for them to be with people who spoke the same language. Before the removals, cultural groups were mixed. But under the Group Areas Act, people were moved and classified by their tribe. The Mavambe people were also affected by the removals, because their people were moved, and they had to appoint new Indunas. The Mphambos were moved from Knobnose location and the Shigamani were moved from Vuwani. [86] Under cross examination, Mr Manganyi testified that he himself experienced forced removals in 1968 and 1969, when he was about six years old. This was the time that the Bantustans were being formed. He recalls people coming and going. He lost some of his friends, because they were moved away, and others arrived. They were loaded onto trucks. [87] Under cross examination, Mr Manganyi confirmed that there are people older than himself still alive who experienced the removals personally and who could have given testimony about what happened. [88] Mr Manganyi testified that Jimmy Jones is under the authority of the Mavambe, and they have three Indunas there: Xolwani, Mphongola and Mabasa. The farm is known to the Mavambe as Matzim or Shigobo. He said the name JiPi comes from JiPi Hostel in Johannesburg because their people were working there in the urban areas of Johannesburg and in the hostels. The farm, according to Mr Manganyi, is fully occupied, and there is grazing land used by the people of Jimmy Jones and of the Mahonisi villages. The Mahonisi do not need to get permission to graze their animals there. Anyone falling under the Mavambe Traditional Authority can graze their animals freely on the land, he said. He testified that people, including the Mahonisi, also have ploughing fields along the R81 gravel road between Mahonisi and Jimmy Jones. In answer to a question from the Court, Mr Manganyi indicated the area where Mahonisi people are grazing and cultivating on a map. In context, the area indicated is minimal. [89] Regarding the plaintiffs’ testimony that there are Mahonisi graves in Seelig, he testified that this does not prove that the land belongs to the Mahonisi. He said that the graves are supposed to be there as that is where people live and in times when there were no formal graveyards, people would bury behind their houses or in the kraal. He testified that many people have their graves there, in the places where they or their families are staying. It is not only Mahonisi people whose graves are in Mahonisi. The Mavambe have a plan for the development of an area for graves, and people must apply in the office for permission to bury. [90] The witness testified that there was no fight about the Mahonisi wanting to build water tanks, and the Mahonisi people are in any event free to use the Mahonisi dam. They would merely have to apply. The same applies to business developments. Those wanting to develop land must apply. Permission is needed to build a school. A permit is also needed to run an initiation school, this is why in 1985, an initiation school ended prematurely. Mr Manganyi testified that there was no difficulty when RDP houses were built, and that, according to him, there is no tension between the Mavambe and the Mahonisi peoples. Mr Mabasa’s evidence for the Mavambe [91] Mr Mabasa testified that he was born in 1974, and that he was 48 years of age. He is a headman at the Mavambe Tribal Council, and also secretary for the Mavambe Royal Council. He was appointed as headman in 2020, after the death of his brother, who was a headman at the time. He resides in Jimmy Jones. [92] Mr Mabasa testified about three issues. None of the testimony was put to the Mahonisi witnesses, rendering its value limited. [93] First he testified about an area in the north of Seelig where his own family lived. [42] The head of the family was his grandfather, Mr Sias Mabasa Manganyi, the son of Chief Mavambe. Next to their family were the Bhavu, the Mamfani, Nomanyane and Ndumanyane, who were descendants of Mukhomi. He testified that his grandparents are buried there. His grandfather died in 1959. He does not know the dates when his family moved there, nor does he know people’s exact ages, but he believes that his grandfather must have settled on the land in the land in the 1800s. He arrived at that belief by deduction: His grandfather moved there after he married his first wife. He married Mr Mabasa’s grandmother later, and his father – who was not the last born – was born in 1926. He testified that those living there were under Mavambe. [94] Second, he testified about an area in south-central Seelig. [43] In doing so, he asserted that the Mahonisi witnesses were not telling the truth when testifying about this area. He testified that five of his aunts are married there. He testified that to his knowledge, the movement of people from these areas was not forced and that people moved because it would be easier to get access to services if they did. He testified that when people were moving, some of them were singing. He explained that he was not born then but that this is what the older people who were there have said. [95] Third, he testified about the area referred to as JiPi, which he marked as being on the boundary of Ireland and Seelig. [44] He testified that the name JiPi is in fact a reference to Jeppe in Johannesburg and that the people who were staying there are Mavambe people. He referred to a grave. [96] Under cross-examination, the witness confirmed that there are older people still alive who can testify to what happened during the removals. He accepted that he was not yet born when the removals happened. He also accepted that none of his testimony was foreshadowed in witness statements but that he had listened to the evidence of the Mahonisi witnesses when they testified and then decided he wished to testify to deal with what had arisen. The witness confirmed further that he does not know the Mahonisi families from the time of the removals. The witness was not in a position to testify about the 1959 or 1962 Gazettes, though asked to comment on them including the fact that the 1962 Gazette uses the language of redefinition. Nevertheless, the witness denied that the effect of the 1962 Gazette was to take the Mahonisi land without consultation or consent. The witness reiterated that he did not have personal knowledge of the dates when his family moved to the area in north Seelig that he had testified about (marked RA) but reiterated that he believed it was before 1920. Regarding his knowledge of his family in south-central Seelig, specifically his five aunts, and their being under Mavambe, he indicated his evidence is based on what he is told. He indicated that there are others alive who would have direct knowledge. It was put to him that intermarriage did not serve to expand the jurisdiction of a traditional community. [97] The witness was cross examined further about a claim made, in his evidence in chief, that the Mahonisi is a small community. The witness confirmed that he has no knowledge of its actual size but understands the community to be small relative to others in the area. Further questions were raised in this regard including from Mr Seneke, but we are of the view that the precise size of the community is not ultimately material. Moreover, the issue is complicated in that the witness made it clear that his answers are informed partly by his view that ‘foreigners’ who live there should not be counted. [98] The witness was cross-examined about the Commission’s findings. The witness persisted with his claim that the movements of people within the area were not forced, but voluntary, in the interests of town planning, and that it was only the movements to establish the former homelands (Venda and Gazankulu) that were forced. Mr Mahanga’s evidence on behalf of the Mukhomi Traditional Authority [99] Mr Mahanga was called to give evidence on behalf of the Mukhomi Traditional Community. The present Chief of the Mukhomi is a son of his brother, and he is the chairperson of the royal family (or royal council) of the Mukhomi. He was born on 2 January 1956, in Mukhomi, but moved to Malamulele Township when he started working. [100] He testified that the Mukhomi people came to the area in the 16 th and 17 th centuries and stayed in Mukhomi Village, on Knobnose, where they still are. The Mukhomi chief’s kraal was and remains at Mukhomi village. They were also scattered around that area and to the north, east and west, until the removals. He testified that the Mukhomi Traditional Council was recognised officially in the 1960s. Before that they were Indunas. They had to apply to be recognised as chiefs. At present, the Mukhomi people have several Indunas: three at Mukhomi village, two at Gumbani village, three at Phaphazela. [101] Mr Mahanga was asked to describe the boundaries of Mukhomi land before 1960 which he did with reference to place names. He explained that he was not comfortable using maps and despite various efforts from counsel to assist, he was not able to do so. The description is on record in two ways both of which, in the context of the evidence as a whole, clearly include portions of land that are not under claim by the Mahonisi and which lie in the north, on parts of Molenje Portion 1. They also clearly include areas under claim by the Mahonisi specifically on Knobnose and Molenje Portion 2. The descriptions are noted below: 101.1 First, commencing at the beacon known as Beacon no 1. The area extends from that beacon to Maswanganyi when it points back to the Shingwedzi River. It then proceeds south-west to the Tambolati River and extends to a pipe. It then proceeds through the Tshikotikoti dam and heads back to Beacon no 1. He accepted that the Mahonisi were living in the west but testified that they were under Mavambe. 101.2 Second, the witness used Shangaan names. He referred to the boundary between Mukhomi and Mavhambe as a rivulet known as Ngholombhi. The boundary proceeds to a rivulet known as Madzaleni, down to the Mukhomi dam and proceeding to the Singwedzi River. It then goes up towards Maswanganyi, turning back towards Mulamula, then back to Bombani and turning back to Nthebula in the west. It then goes in the north to Piet Booi (Molenje Village) and then back to Ngholombhi. [102] According to the witness, Ngholombhi was the focal point for grazing and where his brother Chief John Maswengeni applied for a borehole to supply water to all the Mukhomi villages. Mr Mahanga was able to refer to family members from different parts of the Mukhomi areas. He referred to the Machebele and Modjadji family from the western part, which included his father’s aunt. They were given Induna status in that part. He referred to family in Phaphazela and to family names such as the Manpanis, the Bhavus (fruit growers) and the Shehalati and Momdlulu (in the south). [103] He confirmed that the Mahonisi were residing in the east, ‘the eastern part of Mukhomi’. He stated that the Mahonisi were on Molenje Portion 2, a farm he said they shared with the Mukhomi, but in separate parts: the Mahonisi predominantly occupied the south (and east) and the Mukhomi predominantly occupied the north. The Madzala rivulet was the boundary between the two. The Mukhomi also occupied Portion 1. Under cross-examination, he disputed that the Mukhomi only came to Molenje Portion 2 after 1920, as testified by the Mahonisi witnesses. [104] Mr Mahanga confirmed that there was a Mahonisi grave on Molenje Portion 2 which they have respected over the years. (This appears to be reference to Chief Mahonisi’s grave.) Mr Mahanga testified that another grave emerged in 2003 (possibly that of Josias Mahonisi). Mr Mahanga testified that he knew nothing about the difficulties that the Mahonisi said that they had in burying Josias Mahonisi on Molenje Portion 2. He found the grave many months after he had been buried: he found a road that had been cleared. He is not aware of other Mahonisi graves on Molenje Portion 2 but accepted that there may be unmarked graves. The rest of the graves of the Mahonisi he knows of are in Seelig, along with the Manpanis, Bavhus, Rhulani and Mavambe. He testified that he does not know of any use of Knobnose for grazing by the Mahonisi. [105] According to Mr Mahanga, the first removal in Mukhomi happened in 1959, when the first group of people were moved after there was a clear demarcation for the living areas at Mukhomi. Before the removals, some people were living on Molenje Portion 2, some on the part of Seelig (in the north) known as Ngholombhi. He testified further that the Mukhomi were affected extensively by the removal of 1959, especially those in the eastern parts. The Mahonisi – who were in the west – were not affected in 1959. One family from the Mahonisi who came to the Mukhomi was the family of Dzanani, which came voluntarily. One of their children later moved back to Mahonisi. And there were many other families that moved too at that time and the witness was able to mention various family names (including the Chabalala, the Golele, the Manganyi and others). [106] Mr Mahanga also testified that there was another removal in 1963 that affected the Mukhomi people on the eastern side. [107] The witness confirmed that the government eventually allocated Molenje Portion 2 to the Mukhomi and Seelig was allocated to the Mavambe. He saw this as a sort of exchange or compensation and testified that there was no disharmony at the time. He believes that the Mahonisi and the Mavambe were working together, as there was harmony in the villages until the land claims process started. Mr Mahanga testified that there had been an agreement between the government, the Mavambe and the Mukhomi about the 1959 demarcation. [108] He testified that in around 1964, both the Mahonisi and the Mukhomi were using Molenje Portion 2 for grazing. This was after the first demarcation and after the Mukhomi lost their homes in Seelig. At that time, they would meet along the Shingwedzi River as water was scarce. The witness testified that after the removals, the Mukhomi discovered the old walls of Mahonisi houses and a school (with reference to Molenje Portion 2, presumably parts where the Mahonisi had previously lived). The Mukhomi were removed from the parts of Molenje Portion 2 that they occupied, on the side of Molenje village. They were moved in accordance with the “demarcated plan”. They took their roofs with them, and the grass, where it was all right, but left the walls. He testified that they were not removed by government vehicles in 1963, but rather went freely. Some went ahead to build shelters, and others followed with their possessions. [109] In 1968, TshiVenda speaking people were loaded onto vehicles and removed from the Mukhomi area, to the far-away TshiVenda area. Other XiTsonga speaking people were brought in from other areas to occupy the empty stands. The witness saw this as ‘a gain’ as empty stands were filled. [110] The witness was clear that before the demarcations, there were Mukhomi people who lived at Seelig. He was shown Exhibit I. With reference to the names the Mahonisi use for Molenje Portion 2 (Xivhalwini / Tsande-Tihosi), the witness tesfified that while he does not know the first name, the second name is associated with the place where his brother applied for a borehole, and there is a well there. The witness confirmed that before the demarcations, that area belonged to the Mahonisi. He confirmed too that the south-eastern part of Molenje (referred to as Huka by the Mahonisi) was only allocated to the Mukhomi with the demarcations. It is now a grazing area, used by the Mukhomi and people that come across from the TshiVenda area to where the Mahonisi used to stay. The area is important. With an explosion of population, it is the last remaining grazing area. [111] Under cross examination, the witness testified that when the Mukhomi people arrived in the 16 th and 17 th century, the Mahonisi people were not there, but the Mavambe people were there. He testified that the Mukhomi tax number is 122. He also testified that while the Mukhomi did not provide documents to prove their historical presence on the land, they did not know that such documents would be required. But they supplied what is at their disposal. As a family, they considered it sufficient that they can refer to the proclaimed areas showing the boundaries of their jurisdiction. Counsel for the plaintiffs referred Mr Mahanga to the September 1962 Gazette pointing out that it refers to Headman John Mukhomi and noting that even a headman can be allocated land. Counsel put the plaintiffs’ version – that the Gazette removed the Mahonisi land from them and placed it under the Mukhomi. In response, Mr Mahanga testified that the Gazette accorded the Mukhomi their rightful ‘ownership of that place’. That notwithstanding the prior testimony that the Mahonisi had also resided on at least Molenje Portion 2. Ultimately, however, the witness accepted that ‘ (b)efore the demarcations it might have been to Mahonisi people (sic) but after the demarcations it became the Mukhomi … ’ [112] Regarding the witness’ contention that there had been a land exchange between the Mavambe and Mukhomi regarding Seelig and Molenje Portion 2, it was put to the witness that this does not accord with the Mavambe’s testimony to the effect that Seelig was always theirs. Ultimately, both versions entail that the area was used to block others from coming into their territory. [113] When the Mahonisi version was put regarding their status as an independent chieftaincy prior to the 1962 Gazette which placed them under the authority of the Mavambe, the witness, to his credit, admitted that he cannot comment on it as he was not party to it. This important concession places much of his evidence in context, specifically the consequences of his confirming that the Mahonisi were on both Molenje Portion 2 and Seelig prior to the removals of the early 1960s. [114] However, the witness firmly rejected the proposition that the Mahonisi were using Knobnose as grazing prior to the removals. He rejected this based on his personal knowledge and having been there at the time including at the head Kraal. He referred to families that were there, and he denied the Mahonisi version that the Mukhomi were chased to the area by Piet Booi. In this regard, the witness referred to the royal graves mentioning four chiefs of the Mukhomi: Chief Mukhomi (died early 1820s), Homula (died 1870), Juwell Masumgweni (died 1947) and John Masumgweni (died 1970). Their graves, he said, are all at the royal graveyard, and the grave of the first Mukhomi chief has been engulfed by a baobab tree. Mr Mahanga explained that he knows when Chief Mukhomi died because the information was passed down through generations. The same is true for the other chiefs, although the witness knew John Masumgweni personally. [115] Counsel for the plaintiffs referred the witness to the 1955 map and the 1936 map, both of which depict the Mahonisi on Knobnose. The witness persisted denying the presence of the Mahonisi, questioning the maps’ authenticity and correctness. However, the witness had to accept that there was ample correlation between the map and what the witness accepts regarding other communities in the area. The witness also accepted that the Phaphazela community was further north (as depicted on the 1936 map) prior to the 1962 removals, when they were brought into the Mukhomi fold. The witness explained that in 1962, the people of Phaphazela moved to settle under Mukhomi, carrying their belongings themselves. Then, in 1968, the people who stayed in Phaphazela were moved by the government, like everyone else. [116] Counsel for the plaintiffs put to the witness the Mahonisi version on forced removals from Molenje Portion 2 to Seelig in 1963/1964, accepting that some had voluntarily moved to be with the Mukhomi. The witness answered that he could not agree, ‘ I don’t think the Government that we are talking about can be so insensitive to oppress only you people, but putting on soft gloves to the other communities like us as Mukhomi. We, we were told that we have demarcated new areas – you have to move here, you got there. We listened and we got there. We were never forced.’ It was put to Mr Mahanga that the Mahonisi would not have left their school, so that they then had to go to school under the trees. His evidence in response was simply that the school was not as formalised as what we would imagine today: It was only one room. The schools built thereafter, he said, were better. [117] Counsel for the plaintiffs showed the witness a court order dated 26 June 2014 obtained by the Mahonisi against the Mukhomi preventing development of a part of Molenje Portion 2 pending finalisation of the land claim. The issue arose in circumstances where the witness was being asked about currently available grazing land. [118] The witness testified that the Mahonisi and the Mukhomi are closely related and that there is significant intermarriage and movement between them. There has been much historical co-operation. Under cross examination it became clear that this level of interconnectedness does not apply to the relations between the Mukhomi and the other defendant communities. Mr Mphambo’s evidence for the Mphambo [119] Mr Mphambo testified that he was born in March 1958 into the Mphambo Community. He was 64 years old at the time of testifying. He is chief of the Mphambo Community, but officially recognised as a headman by the government. The Mphambo Community is living on Natorp. They settled there on 6 June 1968, after being forcibly removed by the apartheid government from a place called Pfukani. [120] He testified that when the Mphambo people arrived at Natorp in 1968, they did not find the Mahonisi people there on arrival. When the Mphambo people arrived at Natorp, they found Maharani’s family there, and many families on the other side of the Shingwedzi river. Those people still live at Natorp farm, under the Mphambo. The evidence was that the Maharani family was under the Mphambo’s authority from when the Mphambo arrived. [121] The Mphambo, he testified, share a portion of Natorp with the Shigamani community, and they share portions of Ireland and Krause with the Mavambe. This is in terms of a Government Gazette, he explained, as well as an agreement with the Shigamani. He gave this evidence in response to the Mahonisi people’s claim that approximately 103 hectares of Natorp belong to them. The witness opined that if the Mahonisi people get the 103 hectares they have asked for, it will disadvantage the Mphambo people, because they have already allocated land for housing. [122] The witness testified that before the Mphambo people arrived on Natorp in 1968, the Mbatlo community was there. While the Mahonisi people contend that they were the neighbours of the Mbatlo, and were removed from Natorp, Mr Mphambo could not speak to whether the Mahonisi people were there, as the Mphambo were not there yet at the time. [123] Mr Mphambo’s evidence confirmed that his people were forcefully removed in 1968 and that it caused much pain, some people lost animals, and some were even separated from and lost their relatives. Only one family remained, everyone else went to Natorp. [124] Under cross-examination the witness was referred to the 1968 Notice and it was put to him that only Natop was allocated to the Mphambo, not the further farms being used, specifically Ireland and Krause. The witness disagreed saying that the document supplied is incomplete but he was unable to produce a complete copy. The witness confirmed that he was unable to say to which community Mr Marahani belonged before 1968. He also could not dispute that the Mahonisi were the neighbours of the Mbatlo. Mr Shigamani’s evidence for the Shigamani [125] Mr Bohani Eddy Shigamani is 43 years old. He was born in 1978. He lives in Shigamani village on Frank Mennie. He is the Shigamani Chief, but his official title is headman, equal with the Mphambo. The Shigamani are currently located on Frank Mennie and a farm to the south, Mckecknie, which they use for grazing. [126] Because the Shigamani only arrived in the area and on the land in 1968, and was only born in 1978, the witness’ knowledge was limited and he could not give testimony on what transpired in the area before. To the witness’ credit, he did not attempt to. [127] Mr Shigamani testified about what he knew about how the Shigamani came to the area. It was in 1968. At that time, the Shigamani were forcibly removed from what was then Shigamani, in the Venda area, and taken to the place where the Netshitungulwani stayed, which is now called Shigamani. This land is on the Frank Mennie farm. [128] The witness described what he knew of how the removals unfolded. He explained that in Shigamani people were loaded on top, on a truck, with their belongings. They were then off-loaded at the place they now live. After they were off-loaded, the people who were living there (the Netshitungulwani) were loaded on the truck, to be delivered at Shigamani. The places were far from each other, but less than 40 kms. This was all because of the Group Areas Act. They swapped the settlements, even the places where the chiefs stayed. The government’s justification for the removals was that they were moving language groups together. [129] Importantly, the witness testified that the Shigamani never used the north portion of Frank Mennie farm, which was used by the Mahonisi people. The boundary is the Shingwedzi river. However, under cross examination, the witness appeared to backtrack from this evidence saying that the Netshitungulwani would have to testify about the history, and claiming no knowledge about the boundary asserted by the Mahonisi. [45] [130] Under cross examination, the witness emphatically refuted what his counsel had suggested in an opening address, namely that there was a gentleman’s agreement causing the Shigamani to move and swap settlements with the Netshitungulwani. It was a forced removal. However, the witness confirmed that he had no first-hand knowledge, as he was born in the ‘new’ Shigamani area. The first issue: Are the Mahonisi a community as defined by the Restitution Act? [131] Section 1 of the Restitution Act defines a community as ‘ 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 .’ [132] In In re Kranspoort Community [46] this Court (per Dodson and Moloto JJ) held that the definition requires that there be a community in existence at the time of the claim, and it must be the same community or part of the same community deprived of rights in the relevant land. [47] However, mindful that communities ‘cannot be frozen in time’, not least when subjected to a forced removal, the Court held that the section requires that there must be, at the time of the claim (a) ‘a sufficiently cohesive group of persons to show that there is still a community or a part of a community, taking into account the impact which the original removal of the community would have had’ and (b) ‘some element of commonality with the community as it was at the time of the dispossession to show that it is the same community or a part of the same community that is claiming’. [48] This dictum was approved by the Constitutional Court in Goedgelegen . [49] [133] In Goedgelegen, the Constitutional Court held that the Restitution Act sets a low threshold as to what constitutes a ‘community’, which is not restricted to accepted tribal identity. It held: [50] [40] There is no justification for limiting the meaning of the word ‘community’ in section 2(1)(d) by inferring a requirement that the group concerned must show an accepted tribal identity and hierarchy. Where it is appropriate, as was the case in Ndebele-Ndzundza, the ‘bonds of custom, culture and hierarchical loyalty’ may be helpful to establish that the group’s shared rules related to access and use of the land. The ‘bonds’ may also demonstrate the cohesiveness of the group and its commonality with the group at the point of dispossession. [41] However, what must be kept in mind is that the legislation has set a low threshold as to what constitutes a ‘community’ or any ‘part of a community’. It does not set any pre-ordained qualities of the group of persons or any part of the group in order to quality as a community. …’ [134] In light of Goedgelegen, it is not necessary for this Court to conclude that the Mahonisi had an accepted tribal identity to find that they are a community for purposes of the Restitution Act. Nor is it necessary for this Court to conclude that any such acceptance constituted formal acceptance under colonial and apartheid laws, specifically the 1927 Act and the 1951 Act, and if so in what ways. [135] The uncontroverted evidence given on behalf of the Mahonisi established that at the time of the alleged dispossessions, they constituted as a group with shared rules that determined who had access to land that was held in common by the community. The testimony established clearly that access to land was determined by customary rules, and ultimately by the persons referred to by the witnesses as the Chief and the Indunas. Different portions were allocated for residence, for grazing and for ploughing. [51] [136] The claimed land has always been owned by the State – whether in its present or prior formations. The Court has not been furnished with clear information on whether the claimed land was scheduled or released land (and owned by the Trust – from different points) under the 1913 Act and the 1936 Act. However, we must accept it may well have been. [52] In any event, while the claimed land was under formal title, this was no impediment to ‘rights in land being derived from shared rules determining access to land.’ [53] On the evidence to hand, the land has always been both State owned and communally held. Moreover, an assumption that the claimed land constituted either scheduled or released land under the 1913 Act and the 1936 Act and was Trust owned at a point, would strengthen the plaintiffs’ case on this issue. [137] In our view, it is quite clear in this case that the rights in land of those residing on the claimed land were always derived from shared rules determining access to land held in common. It is also quite clear that there remains today a sufficiently cohesive group of persons who still constitute as the Mahonisi Community and which has significant commonality with the community at the time of the alleged dispossessions. [138] The question remains whether the Mahonisi Community constituted as a distinct group or were under the Mavambe. We find below that they did constitute distinctly, but on either version they fall within the definition of a community under the Restitution Act as it suffices to be part of a group. The second issue: The Mahonisi’s distinct group status pre-1962 [139] The second issue is whether the Mahonisi Community have established a distinct status as a community living under custom, specifically from that of the Mavambe prior to the August 1962 Notice. This was squarely disputed by the Mavambe, who contend that the Mahonisi had always been under their jurisdiction. This is relevant to whether they were dispossessed of some of their rights in land, specifically in respect of lands placed under Mavambe territory in terms of the August 1962 Notice (or thereafter). [140] Notably, the distinct status of the Mahonisi as a traditional community is an issue that informs the decision of the Thohoyandou High Court referred to above in which the Mahonisi advanced the same case as in these proceedings on this issue, in other words, that they were a distinct community before the apartheid government, in 1962, placed them under the Mavambe without consultation or their consent. The defence advanced was, similarly to this case, that the Mahonisi had always been regarded as under the Mavambe. The order made is referred to above. [141] We are mindful that disputes about the status of traditional communities and their leaders are matters that ordinarily fall within the jurisdiction of the high courts and that we should only invoke our jurisdiction to determine such issues under section 22(2)(c) of the Restitution Act if they are incidental to issues falling within our jurisdiction and it is in the interests of justice to do so. To the extent that it is necessary for us to venture into this area, which is limited, we are satisfied that it is in the interests of justice to do so. Our conclusions are consistent with those of the High Court’s order. Furthermore, the issue before us is limited to whether there was a distinct status as a tribal entity, not with the nature of the entity’s status or that of its leaders, whether under custom or under colonial and apartheid laws. [54] [142] In brief, the evidence in this case establishes that the Mahonisi Community were a distinct tribal entity prior to 1962. That is so even though there is no evidence before us that demonstrates that either the Mahonisi Community or the Mavambe were afforded formal recognition as ‘tribes’ under the 1927 Act or the 1951 Act prior to the 1959 Notice when the Mavambe were afforded such recognition in terms of section 2 of the 1951 Act. It was, however, established that the Mahonisi Community historically had a distinct tax number (121), as did the Mavambe (129) and the Mukhomi (122). Moreover, the evidence showed, other than the Mahonisi, no other headmen under the Mavambe post 1962 historically had their own tax numbers. Although there is no evidence before us regarding how tax numbers were allocated, the fact that the Mahonisi historically had their own tax number, but after 1962, were required to pay tax under the Mavambe number is consistent with and corroborative of their version that, prior to that time, they had independent tribal status. [55] [143] Furthermore, the evidence of the Mahonisi witnesses supports the conclusion that they had a distinct identity: their connection to their heritage lands on Molenje Portion 2, where the graves of the late Chief Mahonisi and the late Josiah Resenga lie; the archival maps of 1936 and 1955 which show the Mahonisi as a distinct group; the coherent explanation of the boundaries of their territory with reference to African names, and markers within it (such as the Baobab tree); the clear identification of neighbouring communities which is consistent with the history of removals; the clear identification of the families under Mahonisi jurisdiction; the history of inclusion of the Marahani family; the explanation of the impact of their incorporation into the Mavambe on decision-making regarding allocation and use of land, amongst others. Much of this evidence was ultimately uncontradicted, albeit that the Mavambe witnesses sought to question its cogency (for example regarding the dating of the Baobab tree). Moreover, what stands out markedly is that no-one testified on behalf of the Mavambe who had personal knowledge, or other substantiated knowledge of the historical position. Rather the distinct impression left after the testimony of Mr Manganyi is that his testimony relates to the post 1962 position, which is common cause. Moreover, the Mahonisi Community version is supported by the two-stage process through which the Mavambe territory was defined under section 5(1)(a) of the 1927 Act, initially as limited to Mavambe location and thereafter extended to include Seelig and properties to its east. It is also corroborated by the fact that a Mavambe land claim before the Court depicts their claimed land as Molenje Portion 1. [56] [144] The second Mavambe witness, Mr Mabasa, was similarly unable to testify about the historical position based on personal knowledge. And to the extent that he was in a position to substantiate his knowledge, his version was not put to the Mahonisi witnesses, rendering the evidence of limited value. [57] In any event, the evidence does not ultimately counter the legitimacy of the Mahonisi claim to distinct historical tribal status. What it does show, rather, is that precise boundaries may not be strictly contiguous with the farm boundaries, specifically in northern Seelig and on what was formerly Jimmy Jones. Beyond that the testimony confirms what common sense dictates would likely have happened, namely that there was a level of intermarriage between the Mahonisi and Mavambe people. [145] Neither the witness for the Mphambo (Mr Mphambo) nor the witness for the Shigamani (Mr Shigamani) were in any position to refute the claims of the Mahonisi to a distinct tribal status. The witness for the Mukhomi (Mr Mahange) was in a somewhat different position as he does have some historical knowledge. However, on this issue, his testimony ultimately confirmed the distinct status of the Mahonisi Community. Although he tried to distance himself from that position, his attempts were either speculative or unconvincing. Thus, he spoke clearly about sharing Molenje Portion 2 with the Mahonisi, he accepted that the areas they occupied were theirs, and he speculated that the post 1962 position arose through the Mahonisi and the Mavambe working together. The witness found it difficult to believe that the then government could have insensitively forced the Mahonisi under the Mavambe while treating others, like themselves, favourably. This stance is somewhat surprising given that coerced tribal identity was a notorious feature of our history by virtue of, inter alia section 5 of the 1927 Act. [58] [146] In light of all the testimony, we conclude that the Mahonisi have established, for purposes of these proceedings, that they had a distinct tribal identity to that of the Mavambe before 1962. Importantly, we also accept that the 1962 Notice which placed the Mahonisi under Mavambe authority occurred without consultation with the Mahonisi and without their consent. The Mahonisi evidence on that issue was compelling and materially uncontroverted. Third issue: Whether the plaintiffs were dispossessed of rights in land when they, or their land, were incorporated under the traditional authority of the second to fifth defendants [147] The third issue is whether the plaintiffs were dispossessed of rights in land as a result of racially discriminatory laws and practices when they were relocated from their scattered formation to a central place in Seelig thereby losing access to substantial parts of the claimed land and when they or their land were incorporated under the traditional authority of the second to fifth defendants under the August 1962 Notice, the September 1962 Notice and the July 1969 Notice. [148] There can be no real debate that these processes must be attributed to racially discriminatory laws and practices. It is clear from the evidence that the events that took place in the 1960s in the area were part of the process to consolidate racial segregation. These processes were framed by the 1913 Act, the 1927 Act and the 1936 Act, and pursued by the apartheid government under these laws and the 1950 Act [59] and the 1951 Act, to consolidate the policy of racial segregation and ultimately to establish the homelands of Venda and Gazankulu in the 1970s. It is also clear, not least from the relevant government notices, that the notorious tribal identification and removal powers conferred by section 5 of the 1927 Act were invoked directly to this end. [149] Under section 1 of the 1927 Act, the Governor-General (subsequently State President) was recognised as the ‘supreme chief of all natives’. Section 5 of the 1927 Act provided: [60] ‘ (1) 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.’ (2) Any Native who neglects or refuses to comply with any order issued under paragraph (b) of sub-section (1), or with any conditions thereof, shall be guilty of an offence and liable on conviction to a fine not exceeding ten pounds or to imprisonment for any period not exceeding three months. (3) Any magistrate, native commissioner or assistant native commissioner within whose area of jurisdiction the place from which the removal is to be made is situate, may, upon such conviction, take all such steps as may be necessary to effect the removal in terms of the order.’ [150] There can also be no real debate that the rights that the Mahonisi community held in their land prior to their relocation and incorporation under the Mavambe were not merely beneficial occupation rights but long-established customary rights in land. All the properties were historically state-owned land (even in different state formations). We have accepted – as one such formation – that the claimed properties may well have been Trust owned land at a point but that does not alter the conclusion that the land rights the Mahonisi community held were customary rights in land. As the Constitutional Court explained in Tongoane, racially discriminatory legislation such as the 1936 Act and the regulations made under it, placed significant restrictions on land rights in respect of Trust land, [61] but customary land rights were not removed and communal tenure persisted even where formalised under the Trust regime. Indeed, even under the intrusive 1969 Bantu Areas Land Regulations – which postdate the removals in this case - traditional leaders continued to play a role in the allocation of land, and succession continued to be determined by customary law. [62] The loss of customary land rights is a significant deprivation: Such rights are in nature, strong land rights whether held at household or communal level. [63] [151] There is no dispute that during the 1960s, the Mahonisi Community were relocated from a scattered formation to the part of Seelig where they now reside, depicted on Annexure A as Mahonisiville. What is in dispute is the boundaries of their historical occupation of the claimed land and whether their movements were voluntary or coerced. Moreover, there is no dispute that the effect of three of the government notices was to place claimed land under the territorial jurisdiction of the second to fifth defendants. The August 1962 Notice (which amended the territorial jurisdiction of the Mavambe determined in the 1959 Notice) placed the claimed areas of Seelig, Malamulele, Krause and Ireland under the Mavambe, more specifically the Mavambe Tribal Authority. The September 1962 Notice placed the claimed areas in Knobnose and Molenje Portion 2 under the Mukhomi, more specifically under the Guwela Tribal Authority. The July 1969 Notice placed the claimed area of Natorp under the Hlavekisa-Mphambo Community Authority and the claimed area of Frank Mennie under the Shigamani Community Authority. What is in dispute is whether in doing so, the Mahonisi was thereby dispossessed of rights in land. This entails both a factual consideration of whether the affected claimed land was Mahonisi land prior to the respective notices and a consideration of the legal effect of the notices on the Mahonisi land rights. [152] Viewed in this way, there are three questions to answer in dealing with the third issue. 152.1 Were the removals forced or voluntary? 152.2 What land was Mahonisi Community land prior to the removals and government notices of the 1960s and what Mahonisi land was lost as a result thereof? 152.3 Did the government notices have the effect of depriving the Mahonisi Community of rights in land? [153] We deal with the answer to these three questions together as they overlap in time and place. [154] The evidence establishes that there were forced removals at various points in the 1960s, including in 1960, 1963/1964, 1966 and 1968, each of which affected, amongst others, the Mahonisi Community. [155] The removals commencing in 1960 and continuing in 1963, 1964 and 1966 included the forced movement of Mahonisi people from their scattered formation across the claimed lands to what is now Mahonisiville, its surrounds and Jimmy Jones. Both Mr Resenga and Mr Ngoveni testified that they had personally experienced the removals. Their first-hand account of the events was neither undermined nor ultimately controverted. Moreover, it was corroborated by the evidence on affidavit by the deceased Mr SG Resenga (born in 1949 at Mahonisi Village), Mr RD Ndobe (Born in 1944 at Mahonisi Village) and Mr E Chauke (born in 1951 in Jimmy Jones). [156] Their version is also corroborated by Mr Manganyi’s testimony for the Mavambe, about removals in 1960, as set out above. Although Mr Manganyi testified that the removals were not by force, he also testified that people moved sometimes because the government told them to. The fact that there were removals based on ‘demarcations’ is squarely corroborated by Mr Mahanga’s evidence about removals of the Mukhomi from Seelig and Molenje Portion 2 during 1959 and 1963. Although Mr Mahanga testified that these removals were voluntary, this was not persuasive as regards the Mahonisi. It may be that members of the Mukhomi moved voluntarily, but this does not mean that the Mahonisi did, not least in circumstances where they not only lost access to their land, but were being subsumed under the authority of another community without consultation or their consent. [157] In this regard, there is no dispute between the Mahonisi and the Mukhomi that, as a result both of these removals and the placement of Molenje Portion 2 under Mukhomi control that the Mahonisi lost their land on Molenje Portion 2 including residential areas, their school and access to the royal family gravesite. The disputes that come to the fore, rather, are whether they lost access to any land on Knobnose – which the Mahonisi say they used for grazing – and whether the north and north-eastern part of Molenje Portion 2 was Mukhomi or Mahonisi land. [158] On Knobnose, we are satisfied that the Mahonisi did lose grazing land on that property. This version was not only supported by the oral and affidavit testimony of the Mahonisi, it is corroborated by the 1936 and 1955 archival maps. Furthermore, the version makes sense when one appreciates that before the ‘demarcations’ Phaphazela was further to the north than it now is and the three Mukhomi towns on Knobnose (Phaphazela, Mukhomi and Gumbani) did not exist historically in the formations they now do. [159] Whether the north / north-east of Molenje Portion 2 and indeed, parts of the claimed area of Knobnose were Mukhomi or Mahonisi land prior to the demarcations and the removals is more difficult to determine. In this regard, the Mahonisi’s version is that they arrived in the area in 1840. The Mukhomi – when they arrived – were located further to the north but after being chased by Piet Booi and in 1920, the Mahonisi allowed the Mukhomi to settle on parts of their land. The Mukhomi’s version was not squarely put to the Mahonisi witnesses, but it entails that they were there by the 1700s and were from then in the north and north-east of Molenje Portion 2. Their royal kraal is in Mukhomi Village where it has always been and is the gravesite of four Mukhomi chiefs. [160] Part of the difficulty in resolving this dispute is that, in the absence of evidence from a historian or other suitable expert, the dates that the parties claim to have arrived can’t be verified. South African history is contested, not least due to the ways ethnicity has been constructed. However, even a cursory consideration of readily accessible historical texts reveals how important historical evidence is. Thus Platzky and Walker [64] explain that the people now known as Tsonga people ‘came across from Portuguese East Africa at various times during the 19 th century (settling) under many different chiefs throughout the north-eastern and eastern Transvaal. … Most of them had come from Gaza province, having been pushed north by various Nguni groups fleeing from the Zulu in the 1820s.’ [65] This account substantially accords with the more detailed account of Harries, [66] in which Harries explains how Tsonga ethnicity was constructed, and how affected groups on arrival, either became part of Venda or Sotho groups already in the area or settled as disparate groups of their own. We refer to these texts not to accept their correctness, nor as evidence, but to note the importance of historical evidence to establish facts relevant to land claims including facts such as when a group may have arrived at a certain place. Moreover, historians engaged in matters of this sort will frequently resort not only to written text but to oral histories gained from interviewing claimant communities. [161] We do not have the benefit of such evidence and in the circumstances of this case we consider it imprudent to make definitive findings on the evidence to hand on when the communities who are parties to this litigation arrived in the affected areas. Suffice to note that the plaintiffs’ version of arriving in about 1840 does accord with written narrative. The difficulty is that even if the Mukhomi (who claim to have arrived in the 1600s and 1700s) and the Mavambe (who claim to have arrived in the 1700s) only arrived later, in the 19 th century, this does not ultimately resolve the disputes about where they were located and in what formation. [162] What nevertheless requires resolution now is the basis upon which the Mukhomi occupied parts of the claimed land prior to 1962, which we accept they did, specifically on parts of Molenje Portion 2, parts of northern Seelig and parts of Knobnose (where the Mukhomi royal graves are and on the border with northern Molenje Portion 2).6 On the evidence to hand, we find that it is improbable that the Mukhomi were subjects of the Mahonisi in these areas and it is more probable that even accepting that the lands were historically Mahonisi lands, they became Mukhomi lands or shared lands through a process of voluntary integration and fluid movement in the early 20 th century. These findings, however, do not affect our findings for purposes of this part of the proceedings. Whether they limit the claimed area of land of which the Mahonisi were dispossessed, if so, to what extent, and what the boundaries between Mukhomi and Mahonisi land or what land might have been shared land on Molenje Portion 2 and Knobnose is a matter for Part 2. [163] We are satisfied that, at least in the main, Seelig was, historically, Mahonisi land and the evidence establishes that the Mahonisi were indeed squeezed into a part of it as a result of forced removals. However, we are not satisfied that the full extent of Seelig was Mahonisi land in that it appears that a small part in the north was probably used, or also used, by the Mukhomi and the Mavambe. The boundary, if any, is, however, a matter for Part 2. [164] Subject also to a final determination of boundaries, we are satisfied that the properties formerly known as Jimmy Jones and Van Duuren and at least part of Ireland and Krause were also, historically, Mahonisi and not Mavambe land, from which the Mahonisi were removed in the 1960s. [165] As far as the Mphambo and Shigamani are concerned, we are similarly satisfied that the northern portions of Natorp and Frank Mennie were Mahonisi land before the removals of the 1960s. Again, the precise boundaries are matters for Part 2. [166] The removals in 1968 can be dealt with simply. They appear primarily to have been removals of TshiVenda-speaking people from the claimed land and its surrounds to the area to become known as Venda, and of XiTsonga-speaking people from other areas (including Venda) to what would become Gazankulu. There can be no doubt on the evidence that the removals referred to in evidence in this case were forced removals. The evidence establishes that the Mahonisi were affected by these removals in two ways. First, because TshiVenda-speaking people from amongst the Mahonisi Community were removed from Mahonisi land on the claimed properties to live in what would become Venda. Precisely which of the claimed properties were affected thereby and to what extent is unclear, but that need not be determined for present purposes. Secondly, the Mahonisi either had been moved out of areas or would lose control over areas that were to become allocated to other XiTsonga groups who were to be moved into the area in 1968 specifically northern Frank Mennie and northern Natorp. [167] What of the effect on land rights of the placement of Mahonisi land under the jurisdiction of the second to fifth respondents pursuant to the August 1962 Notice, the September 1962 Notice and the July 1969 Notice? The evidence shows that the processes surrounding the publication of these notices were accompanied by land losses – for example in Knobnose and Molenje Portion 2, Jimmy Jones, Van Duuren, Krause, Ireland and Natorp. But that was not uniformly the case and in some instances there were no land losses. Thus, it is common cause that the Maharani family land was never lost. The Mahonisi also continue to date to have access to land in Seelig, albeit more concentrated, and on northern Frank Mennie. [168] The Mahonisi submit, nevertheless, that even where there was no loss of land, and even though they still have access to some of their historical land (albeit on a more densified basis), it is now under the control of others as a result of the respective Notices. [67] And they no longer have control over their lost land by virtue of the same notices. We have already concluded that these processes were coerced, without consent or consultation, and not voluntary. The only remaining question is whether the three notices resulted in a loss of rights in land. In this regard, it was submitted that the Mahonisi continue to have access to land under a system of customary law, albeit now subject to the authority of others, specifically the second to fifth respondents, and for this reason they have not lost rights in land. [169] We agree, as submitted by the Mahonisi, that the process of coerced placement of Mahonisi land under the territorial jurisdiction of the second to fifth defendants also resulted in a deprivation of rights in land as a result of discriminatory laws and practices. Where the Mahonisi Community lost land, they lost their customary rights in that land. But the Mahonisi Community lost more too. Historically, and under the system of customary law described in evidence, each member of the Mahonisi Community was able to request and obtain access to land by virtue of their membership of the community and subject to its rules. Moreover, the Mahonisi Community was historically able to control its own land under customary law. We accept their ability to do so may have been subjected to distortions of customary law imposed by, inter alia, the 1927 Act and the 1951 Act. Nevertheless, those customary rights of access and control were lost. This occurred both when the Mahonisi and parts of their land became subsumed, without consultation or their consent, under the authority of the Mavambe and when Mahonisi land became subsumed under the authority of the third to fifth defendants. 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 and in the case of the third to fifth defendants they had no place in their communities or their decision-making structures at all. [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 cognisance to the strength of the rights that vest in, inter alia, households once land is allocated. [68] 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. Conclusion [171] In the result, we conclude that the Mahonisi were dispossessed of rights in land after 19 June 1913 as a result of racially discriminatory laws and practices on the claimed land. The precise boundaries of the dispossessed land are to be determined during the next phase of the proceedings. This is not a case in which any costs order is warranted at least at this stage. [172] We make the following order: 172.1 It is declared that the plaintiffs were dispossessed of rights in land after 19 June 1913 as a result of racially discriminatory laws and practices in respect of the area marked as claimed land in Annexure A hereto on the following adjacent properties (the claimed land): Seelig 206 LT, Molenje 204 LT Portion 2, Knobnose Location 230 LT, Frank Mennie 229 LT; Natorp 227 LT, Ireland 210 LT, Krause 226 LT, Malamulele 234 LT (consolidated from Jimmy Jones 205 LT and Van Duuren 207LT). 172.2 The precise boundaries of the dispossessed land are to be determined in the next phase of the trial. 172.3 The plaintiffs are granted leave to approach the presiding Judge as soon as possible to arrange a case management conference in respect of the next phase of the trial. 172.4 There is no order as to costs. SJ Cowen Judge of the Land Claims Court N Muvangua Acting Judge of the Land Claims Court Ms Brahmi Padayachi (assessor) Land Claims Court Date of hearing: 12 April 2023 Date of judgment: 10 October 2023 Appearances Plaintiffs: Adv Resenga and Adv Chabalala instructed by Nukeri Attorneys Second to fifth defendants: Adv Ncongwane SC instructed by Maboku Mangena Inc First & sixth defendants and participating party: Adv Seneke instructed by the State Attorney, Pretoria [1] Government Gazette Notice 406 of 2007. ## [2]Western Cape Provincial Government and others: In re DVB Behuising (Pty) Ltd v North West Provincial Government and another[2000] ZACC 2; 2000 (4) BCLR 347 (CC); 2001 (1) SA 500 (CC). [2] Western Cape Provincial Government and others: In re DVB Behuising (Pty) Ltd v North West Provincial Government and another [2000] ZACC 2; 2000 (4) BCLR 347 (CC); 2001 (1) SA 500 (CC) . [3] Gazankulu was established under that name by Proclamation R15 of 1973. Venda was established under that name by the Status of Venda Act 107 of 1979. [4] As surveyed and demarcated by the Pretoria Surveyor General in February 1980 and June 1982. [5] The map was prepared by Mr Jacques du Toit, the plaintiffs’ town planning expert and was finalized with the agreement of the Commission’s expert, Mr Kotze. A diagram on record depicts how Malamulele was comprised before the consolidation of Jimmy Jones and Van Duuren. For present purposes, it can be noted that Jimmy Jones lay to the north-east and Van Duuren lay to the south-west of Malamulele. ## [6]CfEmfuleni Resorts (Pty) Ltd v Mazizini Community and Others[2011] ZASCA 139. [6] Cf Emfuleni Resorts (Pty) Ltd v Mazizini Community and Others [2011] ZASCA 139. [7] The difficulty that arose related to transporting the second to fifth defendants to Johannesburg for purposes of the hearing. The issue was resolved after the Court engaged with Legal Aid South Africa. [8] Mahonisi Royal Family and Others v Premier Limpopo Province and Others [Limpopo Local Division of the High Court] case no 1366/2017 (25 May 2020). A copy of the judgment was admitted in evidence as Exhibit K. Its probative force is of course limited, but the Court has taken cognisance of what was in issue and what was decided mindful inter alia of the doctrine of res judicata . [9] This was dealt with in the evidence of Mr Manganyi on behalf of the second defendant. [10] This allegedly ensued under three notices: a) the August 1962 Notice redefining the territory of the Mavambe; b) the incorporation of Molenje Portion 2 and Knobnose under the territory of the Mukhomi pursuant to Government Notice 1556 of 21 September 1962 (the September 1962 Notice), and c) the incorporation of Frank Mennie under the Shigamani and Natorp under the Mphambo in terms of a Government Notice 1195 of 11 July 1969 (the July 1969 Notice). [11] Section 30 is titled Admissibility of evidence and provides: (1) The Court may admit any 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 the aforegoing subsection, it shall be competent for any party before the Court to adduce – (a) hearsay evidence regarding the circumstances surrounding the dispossession of the land right or rights in question and the rules governing the allocation and occupation of land within the claimant community concerned at the time of such dispossession (b) … (3) The Court shall give such weight to any evidence adduced in terms of the subsections (1) and (2) as it deems appropriate. …’ [12] Mr Resenga testified from 2 to 4 November 2022. [13] A copy of the claim form was admitted into evidence as Exhibit E. [14] The Government Gazette was admitted into evidence as Exhibit F. [15] The verification list was admitted into evidence as Exhibit H. [16] The resolution was admitted into evidence as Exhibit G. [17] The photograph was admitted into evidence as Exhibit J19. Mr Resenga took the photographs that were admitted in evidence. He explained that others from the Commission had previously taken photographs but these were not available. [18] The two graves are depicted on a photograph admitted into evidence as J17. [19] This table was admitted as Exhibit I. [20] McKechnie 228 which lies between and to the south of Frank Mennie and Natorp (see Annexure A). [21] The graves referred to are depicted on a photograph admitted in evidence as Exhibit J34. [22] The photograph was admitted as Exhibit J33. [23] The grave is depicted on Exhibit J22. [24] Exhibit J32. [25] The name is incorrectly reflected in the record but appears on the gravestone. [26] A photograph of the gravesite was admitted as Exhibit J22 [27] Admitted into evidence as Exhibit M1 and M3. [28] Exhibit K. [29] T here are now two schools at Seelig, and one is called George Sonto and named after George Sonto Mahonisi. There is also a school at Jimmy Jones called Magnani. [30] The 1958 Proclamation was published in Government Notice 412 of 21 March 1958 and a copy was admitted in evidence as Exhibit L1. [31] In terms of section 5(1)(a) of the then Native Administration Act 37 of 1927. [32] The 1962 Proclamation was published in Government Notice 1338 of 24 August 1962 and a copy was admitted as Exhibit L2. [33] Admitted in evidence as Exhibit L3. [34] Who are not participating in the action. [35] See Annexure A for the land claimed. [36] Exhibit I. [37] In spelling the family names, we have, where possible, relied on the spelling provided in supporting documents referred to by counsel or as confirmed by the legal representatives. Where not confirmed, we have relied on the spelling in the record (which is recorded as phonetic) even if inaccurate. [38] A photograph of the tree is depicted on a photograph admitted into evidence as Exhibit J4. [39] There was no cross examination on this issue. [40] The witness mentioned several recorded on p26 of the record of 7 November 2022. [41] The Government Notice was introduced into evidence as Exhibit L4. [42] He marked the relevant area RA on the witness map. [43] He marked the relevant area RB on the witness map. [44] He marked this area with a RC on the witness map. [45] With reference to maps and diagrams admitted as Exhibits P to S, including surveyor diagrams indicating the boundary from 1980 and 1982. The witness disagreed that there was an agreement to draw a line between Shigamani and Mahonisi land in about 1980. [46] In re Kranspoort Community 2000 (2) SA 124 (LCC). [47] At para 34. [48] Id. ## [49]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) at para 39. [49] 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 ) at para 39. [50] At paras 40 and 41. ## [51]CfPrinsloo v Ndebele-Ndzundza Community and Others[2005] ZASCA 59; [2005] 3 All SA 528 (SCA); 2005 (6) SA 144 (SCA) (Ndebele-Ndzundza). [51] Cf Prinsloo v Ndebele-Ndzundza Community and Others [2005] ZASCA 59; [2005] 3 All SA 528 (SCA); 2005 (6) SA 144 (SCA) ( Ndebele-Ndzundza ). [52] Section 6 of the 1936 Act. In this regard, we have noted that Knobnose and Molenje are mentioned in the schedule to the 1913 Land Act. Moreover, there are deeds enquiries in the court files attached to valuation reports, though not tendered in evidence at this stage, which suggest that this is so. The Court requested the parties to confirm the position prior to delivery of judgment but a clear response was not forthcoming. Accordingly, we are unable to make definitive findings in this regard at this stage. [53] Ndebele-Ndzundza, supra n51 at para 38 and Goedgelegen supra n 49 at para 22 . [54] The doctrines of res judicata and issue estoppel were not raised and it is not necessary for us to consider issues arising under the Limpopo Act. [55] Although not dealt with in evidence, we are aware that legislation did make provision for tribal taxes, rendering this evidence plausible. For example, section 15 of the Native Taxation and Development Act 41 of 1925 dealt with tribal levies in these terms: ‘15(1) When a native tribe or community voluntarily makes application for the levy of a special rate for the benefit of such tribe or community and the Minister is satisfied that the majority of tax payers of such tribe or community desires it is to be imposed, the Governor-General may levy such rate upon the whole tribe or community and such rate shall be recoverable as if it were a tax imposed under this Act. 15(2) The proceeds of any such rate as is levied under subsection (1) of this section shall be paid into a special account in the name of the tribe or community concerned to be administered by the Minister in accordance with regulations made under this Act.’ [56] The claim form refers to Makutsule, Chali now called Khakhanwa situated at Piet Booi, Mulenzhe and is referred to as their original land. In evidence it was accepted that this is a reference to part of Molenje Portion 1. ## [57]To the extent that it sought to demonstrate that the Mahonisi witnesses were being dishonest, the evidence is of no value in view ofPresident of the RSA v South African Rugby Football Union[1999] ZACC 11; 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (CC) at para 61 to 65. [57] To the extent that it sought to demonstrate that the Mahonisi witnesses were being dishonest, the evidence is of no value in view of President of the RSA v South African Rugby Football Union [1999] ZACC 11; 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (CC) at para 61 to 65. [58] Quoted below. [59] Section 2 of the 1950 Act created racial groups and sanctioned the definition of ethnic, linguistic, cultural or other groups and section 3 sanctioned the establishment of group areas which were to exclude land in scheduled or released areas. [60] In Slamdien , Dodson J (Meer J, as she then was, concurring) said the following about section 5 of the 1927 Act: ‘[17] … Where it so happened that the owners or occupants of an area racially zoned were of the wrong race group, the law contained an arsenal to ensure that such persons could be deprived of any rights to the land which they might enjoy and coerced into moving to the correct racial zone.’ In this case, the invocation of section 5 highlights its use within areas designated for certain groups, here the XiTsonga speaking people. Minister of Land Affairs of the Republic of South Africa and Another v Slamdien and Others [1999] ZALCC 6. ## [61]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). [61] 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 ). [62] Tongoane , supra n 61, paras 14 to 21. These remarks are in context of the impact of the Bantu Areas Land Regulations Proclamation R188, GG 2486, 11 July 1969, made under section 25(1) of the Black Administration Act 38 of 1927 read with section 21(1) and 48(1) of the 1936 Act. The judgment does not deal with the position pre 1969 and no evidence was led in that regard. ## [63]See egAlexkor Ltd and Another v Richtersveld Community and Others(CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003) generally but esp para 62 andCouncil for the Advancement of the South African Constitution and Others v Ingonyama Trust and Others[2021] ZAKZPHC 42; 2021 (8) BCLR 866 (KZP); [2021] 3 All SA 437 (KZP); 2022 (1) SA 251 (KZP) (Ingonyama Trust). See too Kerr AThe Customary Law of Immovable Property and of Succession1990, 3 ed, Grocott & Sherry, Grahamstown, 61-2. [63] See eg Alexkor Ltd and Another v Richtersveld Community and Others (CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003) generally but esp para 62 and Council for the Advancement of the South African Constitution and Others v Ingonyama Trust and Others [2021] ZAKZPHC 42; 2021 (8) BCLR 866 (KZP); [2021] 3 All SA 437 (KZP); 2022 (1) SA 251 (KZP) ( Ingonyama Trust ). See too Kerr A The Customary Law of Immovable Property and of Succession 1990, 3 ed, Grocott & Sherry, Grahamstown, 61-2. [64] The Surplus People: Forced Removals in South Africa: Raven Press, Johannesburg, 1985. [65] Id at 126. ## [66]See Patrick Harries ‘Exclusion, Classification and Internal Colonialism: The Emergence of Ethnicity Among the Tsonga-Speakers of South Africa’ in the Creation of Tribalism of Southern Africa.’ Harries’ account is more detailed but he writes of the people to become known as the Tsonga: ‘…it was only in the second quarter of the nineteenth century that coastal peoples settled the area that was later to become the northern and eastern Transvaal in a purposeful way.’ [66] See Patrick Harries ‘ Exclusion, Classification and Internal Colonialism: The Emergence of Ethnicity Among the Tsonga-Speakers of South Africa’ in the Creation of Tribalism of Southern Africa.’ Harries’ account is more detailed but he writes of the people to become known as the Tsonga: ‘… it was only in the second quarter of the nineteenth century that coastal peoples settled the area that was later to become the northern and eastern Transvaal in a purposeful way.’ [67] A useful analogy where dispossession can occur without physical loss of land is in Dulabh and another v Department of Land Affairs 1997 (4) SA 1108 (LCC). [68] See eg Ingonyama Trust and Kerr, supra n 63. The topic of Land Rights and Chiefs is considered, for example, by P Delius in Traditional Leaders in a Democracy: Resources, Respect and Resistance, 2019, Mapungubwe Press, Chapter 2, p39. sino noindex make_database footer start