The case concerned the validity of proclamations issued by the President of the former Republic of Bophuthatswana under apartheid-era laws, including the Native Administration Act 38 of 1927, the Bantu Authorities Act 68 of 1951, and the Bophuthatswana Traditional Authorities Act 23 of 1978, which defined and redefined “tribal” areas across parts of Gauteng, Limpopo, and Mpumalanga.

In its ruling, the Court declared that Government Notice 69 of 23 March 1990 was inconsistent with the Constitution and invalid to the extent that it gave the Bakgatla Ba Mmakau Ba Mokgoko the power to control and manage land under customary law. The Court found that the proclamation, a remnant of apartheid policy, continued to discriminate against the Bakgatla Ba Mocha (Maubane) and Bakgatla Ba Mocha (Maloka) communities by depriving them of their land and customary authority. The SAHRC appeared as amicus curiae (friend of the court) and argued that any proclamation that continues to dispossess a community of its customary land rights made coercively, without consultation or consent, and under racially discriminatory laws violates fundamental rights to dignity, equality, and culture protected under the Constitution.

The Commission further submitted that no effective restitution could occur without the Court formally declaring the 1990 Proclamation unconstitutional and invalid. The SAHRC emphasised that invalidating such a law was necessary to restore the dignity, equality, and customary authority of the affected communities. The Commission commends the Land Court for this historic decision, which strengthens the principles of justice, equality, and constitutional redress for communities affected by apartheid-era land dispossession.

As part of its ongoing mandate, the SAHRC will: 

• Engage with the Commission on Restitution of Land Rights and the Minister of Rural Development and Land Reform to support implementation of the judgment;
• Monitor compliance with the Court’s order to ensure communities’ rights are realised; and
• Advocate for policy reforms that strengthen land and cultural rights for historically marginalised groups.

ENDS

ISSUED BY THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION