Table of Contents 1 Introduction

TABLE OF CONTENTS 1 INTRODUCTION ...... 4 1.1 The Scope of the Study ...... 4 1.2 Approach and Method ...... 5 1.3 Outline ...... 6 2 THE CLAIM ...... 7 2.1 Lodgment ...... 7 2.1.1 The Land Claim Form ...... 7 2.2 The Claimed Land: Property Description and Location ...... 7 2.2.1 Property Description ...... 7 2.3 The Status of the Claim ...... 9 3 BA PHOGOLE ORIGINS ...... 11 3.1 Early History ...... 11 3.2 The Difaqane ...... 13 3.3 The Colonisation of the Tswana ...... 15 3.4 Ba Kwena Ba Mare A Phogole History ...... 16 3.4.1 Genealogy of Chiefs ...... 16 3.4.2 Territory ...... 17 3.4.3 Socio-Political Organisation ...... 19 3.4.4 The Ngakane Clan ...... 19 3.4.5 Reviving Ba Phogole Identity ...... 23

4 OCCUPATION OF THE CLAIMED AREA ...... 31 4.1 White Occupation ...... 31 4.1.1 From the Voortrekkers to the Anglo Boer War ...... 31 4.1.2 After the War ...... 37 4.2 Black Occupation of Claimed Land...... 38 4.2.1 Introduction ...... 38 4.2.2 The Anglo Boer War ...... 40 4.2.3 Labour and Accommodation ...... 41

5 STATEMENTS AND EVIDENCE: CLAIMANTS ...... 49 5.1 Introduction ...... 49 5.2 Documents ...... 49 5.2.1 Report: Phogole Land (Tite) Zonal and Historical Land Marks Updated Report 49 5.2.2 Founding Affidavit by Jacob Ngakane ...... 50 5.3 Individual Declarations ...... 51 5.3.1 Introduction ...... 51 5.3.2 Moses Molenga ...... 51 5.3.3 Martha Motshele ...... 52 5.3.4 Daniel Raditlhalo ...... 54 5.3.5 Dineo Ngakane-Setshedi ...... 55 5.3.6 Anna Mochane Raditlhalo ...... 55 5.3.7 Johanna Kali Raditlhalo ...... 55 5.3.8 Mogapi Gabriel Mogagabe ...... 56 5.3.9 Elijah Khosane Ngakane ...... 56 5.4 Dr. S N Phatlane: History and Impact of Apartheid on Bakwena Ba Mare a Phogole 56 5.4.1 Introduction ...... 56 5.4.2 The Batswana and the Ba Kwena Ba Mare a Phogole ...... 57 5.4.3 The Difaqane and the Ba Kwena Ba Mare a Phogole ...... 57 5.4.4 Land Ownership and Land Occupation ...... 57

6 STATEMENTS: LAND OWNERS ...... 60 6.1 Introduction ...... 60 6.2 Family Histories ...... 60 6.3 Farming ...... 63 6.4 Labour ...... 64 6.5 Education ...... 64 6.6 The Claim ...... 66 7 THE AFFECTED FARMS ...... 68 7.1 Ownership and Title Deed Histories ...... 68 7.2 Affected Farms: Impact of Claim and Population Dynamics ...... 69 7.3 Misgund ...... 73 7.3.1 Ownership and Subdivision ...... 73 7.3.2 Misgund 1910 ...... 75 7.3.3 Misgund Aerial Photo 1938 ...... 76 7.3.4 Misgund 1940 ...... 76 7.3.5 Misgund 1955 ...... 78 7.4 Eikenhof ...... 79 7.4.1 Ownership and Subdivision ...... 79

7.4.2 Eikenhof 1910 ...... 79 7.4.3 Eikenhof Aerial Photo 1938 ...... 80 7.4.4 Eikenhof 1940 ...... 81 7.4.5 Eikenhof 1955 ...... 82 7.5 Zwartkopjes ...... 83 7.5.1 Ownership and Subdivision ...... 83 7.5.2 Zwartkopjes 1910...... 84 7.5.3 Zwartkopjes 1941...... 85 7.5.4 Zwartkopjes 1940...... 85 7.5.5 Zwartkopjes 1955...... 87

8 ASSESSMENT AND CONCLUSION ...... 89 8.1 Introduction ...... 89 8.2 Assessment: Statements ...... 89 8.2.1 Pre-Difaqane Occupation (Origins) ...... 89 8.2.2 Difaqane ...... 90 8.2.3 Conquest and Recovery ...... 92 8.2.4 Evidence of Ba Phogole Occupation ...... 93 8.2.5 Ownership ...... 95 8.2.6 Rights ...... 97 8.2.7 Family Names and Numbers ...... 99 8.2.8 Forced Removal and Compensation ...... 100 8.3 Conclusion ...... 103 MAP 1: PARENT FARMS, CLAIMED AREA ...... 108

MAP 2: FARMS, CLAIMED AREA ...... 109

MAP 3: ERVEN, CLAIMED AREA ...... 110

MAP 4: AERIAL PHOTO OF BA PHOGOLE LAND CLAIM ...... 111

MAP 5: 1: 25 000 TOPO CADASTRAL MAP “KRUGERSDORP” DRAWN AND

PRINTED AT THE WAR OFFICE IN 1913 ...... 112

MAP 6: 1: 25 000 TOPO CADASTRAL MAP “JOHANNESBURG”, DRAWN AND

PRINTED AT THE WAR OFFICE IN 1917 ...... 113

MAP 7: 1: 50 000 TOPO CADASTRAL MAP GRASMERE 2627 BD,

GOVERNMENT PRINTER 1945 ...... 114

MAP 8: 1: 50 000 TOPO CADASTRAL MAP GRASMERE 2627 BD, DRAWN 1956,

REPRINTED GOVERNMENT PRINTER 1972 ...... 115 ii

MAP 9: 1: 50 000 TOPO CADASTRAL MAP 2628 AC, REPRINTED

GOVERNMENT PRINTER 1944 ...... 116

MAP 10: 1: 50 000 TOPO CADASTRAL MAP ALBERTON 2628 AC, SURVEYED

1950, DRAWN 1959, GOVERNMENT PRINTER 1959 ...... 117

APPENDIX 1: PARENT FARMS IN CLAIMED ZONE ...... 118

APPENDIX 2: ERVEN IN CLAIMED AREA ...... 119

APPENDIX 3: ARCHAEOLOGIST REPORT ...... 120

APPENDIX 4: SEME LETTER ...... 121

APPENDIX 5: TITLE DEED HISTORIES ...... 122

APPENDIX 6: LAND OWNERS REPORT ...... 123

iii

1 INTRODUCTION

1.1 The Scope of the Study

1. In the Letter of Appointment the Office of the State Attorney requested: “research on behalf of the Land Claims Commission regarding the claim of the Ba Mare a Phogole and the preparation of a comprehensive report that should investigate and report on:  The validity of the claim;  The land claimed;  The nature and extent of the occupation of the land at the time of the alleged dispossession;  The locality and extent of the land to which the allegedly dispossessed communities, families or individuals were relocated.

2. The Office of the State Attorney and the Regional Land Claims Commissioner Gauteng (RLCC) provided documentation on the claim.

3. The Ba Mare a Phogole claims a vast area of urban and peri-urban land south of Johannesburg largely within the City of Johannesburg Metropolitan Municipality and the Sedibeng District Municipality. The claimed area affects 23 parent farms, and while some of the parent farms are totally included within the area claimed, others are on the boundary of the claimed land and are less affected.

4. The original parent farms affected by the claim are shown below. The map reflects the original parent farms before any subdivisions and early consolidations and subdivisions such as Eikenhof, Liefde en Vrede and Petrusvlei do not appear on the map. Large areas of the claimed land have however been long urbanised and could hardly be called “farms”. The claim however is assessed on the basis of the claimants’ historical rights to the parent farms within, or bordering onto the demarcated Zones.

Affected Parent Farms

5. The Scope of the study is determined by the farms affected by the claim.

1.2 Approach and Method

1. Published sources on the history of the Sotho-Tswana, the Bakwena and the Bakwena ba Mare a Phogole and the history of white occupation of the area as well as the records of the National Archives provided the main source of information for this study. In addition to the literature and archival evidence, historical maps of the claimed land and aerial photography provided valuable information on the history of the occupation of the area from around 1910. Oral evidence was obtained from the current owners, but as representatives of the claimants refused to cooperate, no oral statements could be obtained from claimants.

1.3 Outline

1. The report commences with a brief description of the claim, the claimants, the status of the claim and the claimed property. Land claims are based on historical rights in land, and the history of the Ba Kwena Ba Mare a Phogole is then discussed. The Klip River area had been occupied by the Voortrekkers from as early as 1839, and the historical occupation of the claimed area by whites and blacks are then outlined. This provides the historical background for the assessment of the claim.

2. The evidence of claimants’ historical rights and occupation of the claimed area from documents dealing with the claim and individual declarations, as well as the statements of the current land owners, are then summerised. The focus of the report then moves to the parent farms affected by the claim and the history of ownership and the impact of the claim on each farm is discussed and the dynamics of black occupation of the farms from 1900 to the 1960s is interpreted from historical maps of each farm.

3. The claim is then assessed.

2 THE CLAIM

2.1 Lodgment

2.1.1 The Land Claim Form

1. A Land Claim Form, dated the 19th May 1995 and submitted by Thabo Lucky Mogagabe in his capacity as the “Chairperson of the Tribal Committee”, claimed the “Gauteng Region” on behalf of the “Bakwena Ba Mare -A- Phogole” on the basis that the “Peri Urban Authority” forcefully took the land from the Bakwena Ba Mare -A- Phogole ancestors “through apartheid and discriminatory laws” in 1945 (Annexure 1).

2.2 The Claimed Land: Property Description and Location

2.2.1 Property Description

1. The Bakwena ba Mare a Phogole claims, according to the Land Claim Form, a property described as “Gauteng Region”. A report titled “Phogole Land (Tite) Zonal and Historical

Land Marks Updated Report” dated 29th July 2012 and marked Annexure MM1, and an accompanying hand drawn demarcation of the claimed area on a Google Earth image titled “Bakwena Ba Mare A Phogole Land Claim Area Map”, marked Annexure MM2 and shown above, delineate the area the Ba Phogole claims (Annexure 2).

2. The Zones the Bakwena Ba Mare a Phogole identified, comprise an area of 29 211ha of urban and peri-urban property including:  Twenty three parent farms or portions of parent farms (Appendix 1: Parent farms in Zones and Map 1: Parent Farms, Claimed Area) that have been subdivided into farms, smallholdings and urban erven.  1 576 farms and small holdings ranging from more than 400ha to just over 1ha distributed as follows over the following District Municipalities: Sedibeng (893 properties); City of Johannesburg Metropolitan (647 properties) and Ekurhuleni Metropolitan (27 properties). (See Appendix 1: Farms in Area, Map 2: Farms, Claimed Area)  17 696 urban erven distributed over 25 suburbs (See Appendix 2: Erven in Area, and Map 3: Erven, Claimed Area)

3. The Zones identified include the following 23 farms or portions of these farms:

1. Alewynspoort 145 IR 13. Olifantsvlei 316 IQ 2. Bronkhorstfontein 329 IQ 14. Olifantsvlei 327 IQ 3. Cyferfontein 333 IQ 15. Ormonde 99 IR 4. Diepkloof 319 IQ 16. Palmietfontein 141 IR 5. Driefontein 143 IR 17. Petrusvlei144 IR 6. Eikenhof 323 IQ 18. Rietvlei 101IR 7. Elandsfontein 334 IQ 19. Roodepoort 149 IR 8. Hartsenbergfontein 332 IQ 20. Tok 315 IQ 9. Kromvlei 142 IR 21. Vierfontein 321 IQ 10. Liefde en Vrede 104IR 22. Waterval 150 IR 11. Misgund 325 IQ 23. Zwartkopjes 146 IR 12. Muldersrus 330 IQ

4. The Zones include areas of Ekhuruleni, City of Johannesburg and Sedibeng Municipalities, as shown on the map below (See Map 1: Parent Farms, Claimed Area).

2.3 The Status of the Claim

1. The RLCC dismissed the claim of the Ba Mare a Phogole. The Ba Mare a Phogole appealed against the dismissal of their claim. The RLCC then considered the appeal, and based on the nature of the evidence submitted in support of the claim, concluded that the evidence did not constitute “compelling evidence to review the dismissal of the claim” (Annexure 3). The Ba Mare a Phogole then appointed a researcher to investigate the validity of the claim, and, based on the researcher’s report as well as the report of an appointed mediator and their own investigations, the RLCC argued that the land claim by the applicants is

Frivolous and Vexatious”1. The claimants again approached the Land Claims Court2, and according to the claimants a Draft Order of the Land Claims Court ordering the RLCC to accept the validity of the claim and to publish the claim in the government Gazette, was made an Order of Court3.

1 See Rule 5 Report No. 1 of 2013 (Annexure 4) 2 The documentation is included as Annexure 5 3 Copy of the Court Order not provided 10

3 BA PHOGOLE ORIGINS

3.1 Early History

1. Archaeologists distinguish between the Stone and the Iron Ages of human history. The Stone Age is the period in human history when lithic (stone) material was mainly used to produce tools, while the Iron Age is the name given to the period of human history when metal was mainly used to produce artefacts. In South Africa the Iron Age is divided into  Early Iron Age (EIA) 250 – 900 A.D  Middle Iron Age (MIA) 900 – 1300 A.D  Late Iron Age (LIA) 1300 – 1840 A.D (Pelser, 10)4.

2. Iron Age sites are found in the Rand Water Nature Reserve as well as in the Klipriviersberg Nature Reserve. The sites are similar and possibly related. The Klipriviersberg sites have been extensively researched archaeologically. Mason indicated that they were likely occupied between AD1650 & AD1800, and were built by Sotho-Tswana people associated with the Huruthse group (Mason 1986: 567-602)5. Huffman dated the Klipriviersberg sites to between AD1650 & AD1820, and according to him farming people did not inhabit the Greater Johannesburg region until the Late Iron Age when Ba Fokeng dominated the landscape while a few other Sotho-Tswana people, most notably Ba Kwena, also lived in the region. All agro-pastoralists though appear to have left Greater Johannesburg after 1670 because the climate became cooler and drier, but when conditions improved more or less a 100 years later, Sotho-Tswana farmers once again lived in the area6.

3. Pelser concluded that although the stone walled sites situated in the Rand Water Nature area are typical of Sotho-Tswana settlements dating to between 1650 and 1800 and found in the Klipriviersberg Nature Reserve area as well, archaeological evidence could not conclusively confirm “uninterrupted” Ba Phogole occupation of these settlements that are

4 This is taken from the report of A J Pelser commissioned to advise on the historical relation between stone walled sites in the claimed area and the Ba Kwena Ba Mare a Phogole that is added to the report as Appendix 3: A Report on the Investigation of Stone Walled Sites & Other Features Related to the Bakwena Ba Mare a Phogole Land Claim, Gauteng 5 Mason, Revil, 1986. Origins of Black People of Johannesburg and the Southern Western Central Transvaal AD350-1880. Occasional Paper No.16 of the Archaeological Research Unit. University of the Witwatersrand. 6 Huffman T N. Prehistory: Pre-Colonial Farmers in Gauteng 11

associated with Sotho-Tswana groups of Huruthse, Fokeng and Kwena origin (Appendix 3).

4. Tswana history is characterized by internal fission and division resulting in the creation of numerous independent chiefdoms, and according to Maylam7 Tswana chiefdoms are traced to one of three founding ancestors, named Morolong, Masilo and Mokgatla. Morolong appears to have lived on the western Witwatersrand around the 13th – 14th centuries; Masilo appears to have lived in the northern Witwatersrand area around the 14th – 15th centuries; Mokgatla appears to have lived in the north-eastern Witwatersrand area around the 15th -16th centuries”. Around the end of the fifteenth century the Masilo lineage divided into two from which the powerful Hurutshe chiefdom, originally based at Tshwenyane near the current town of Zeerust, and the Kwena chiefdom arose. By the early 18th century Hurutshe territory included the area from Rustenburg to Pilanesberg; while the Kwena was originally based north-east of the Hurutshe in the present south-western Transvaal region (Maylam, 45)

5. According to Martin Legassick8 Tswana communities who trace their descent from the apical ancestor Malope and his father Masilo began to undergo fission around 1500, and after 12 generations and 300 years later, by 1800, these communities were spread over the Highveld, to the borders of the Kalahari and as far south as the Caledon River (Legassick 100). The dispersal Legassick suggests, commenced near the junction of the Crocodile and Marico Rivers. While the Hurutshe moved to the headwaters of the Marico River, a group, that should be Kwena, moved south across the Vaal to Ntsanatsatsi, located either at Stoffberg (in the Free State) or between Frankfort and Vrede in the Free State (Legassick, 100). According to Kwena traditions, Kwena chiefdoms crossed the Vaal around 1600, legitimizing their occupation of territory south of the river by intermarriage with the Fokeng, before the intermingled Kwena and Fokeng re-crossed the Vaal to the north to settle in the present Heidelberg district (Legassick, 102), from where they moved further northwest. Legassick concluded that “it is evident that over a large area of the southern

7 Paul Maylam, 1986. A History of the African People of South Africa: From the Early Iron Age to the 1970s. David Phillip Cape Town. 8 Martin Legassick, 1969. The Sotho-Tswana Peoples before 1800 in Thompson L, African Societies in Southern Africa. Heinemann, London. 12

Transvaal and the northern Orange Free State … there was, from the sixteenth to the eighteenth centuries, a process of intermingling and presumably acculturation” between entering Kwena lineages and the resident Fokeng lineages9.

6. The entrance of the dominant Sotho Tswana lineages, the Hurutshe (the senior lineage) and Kwena that could have entered as a single community before they broke up, followed, according to Lye and Murray10 after the arrival in the 13th or 14th centuries of the Kgalakgadi in the West and the Fokeng in the East. The ancient Sotho Tswana lineages that subsequently divided into several chiefdoms of varying autonomy dispersed east and west, and by the end of the eighteenth century, the Southern Sotho occupied the land south and east of the Vaal River with Kwena clans, already divided into several distinct chiefdoms, settled mainly along the Caledon valley north of Thaba Bosiu, and Tswana chiefdoms dwelling north and west of the Vaal River, with the Kwena dispersed north and east of the Ngwaketse who dwelt towards Kanye (Lye and Murray, 27).

3.2 The Difaqane

1. According to Huffman, Sotho-Tswana control, and probably occupation, came to an end in Greater Johannesburg in 1823 when Mzilikazi conquered the area. Mzilikazi first established his headquarters near Heidelberg before moving to Pretoria. As it was his policy to empty the border-land of people and to keep his followers, including Sotho-Tswana groups who paid tribute, close to his capital, the settlements of many Sotho-Tswana groups were burnt to the ground at about this time. When he later moved further west to Mosega near Zeerust, he still claimed and controlled the areas he had conquered north of the Vaal River11 until 1838 when the Voortrekkers, with the help of Ba Rolong, forced him to leave South Africa. (Huffman).

9 Legassick based his analysis on Ellenberger D F, A History of the Basuto, Ancient and Modern, and Breutz, Die Stamme van die Distrik Ventersdorp 10 William F. Lye & Colin Murray, 1980. Transformations on the Highveld: The Tswana and Southern Sotho. David Phillip, Cape Town & London. 11 Within two days after the Voortrekkers they had crossed the Vaal River in 1838, he had sent warriors to attack them 13

2. According to Maylam the Tswana were probably the Difaqane’s worst hit victims, suffering severe devastation and dislocation. The Kwena was attacked by marauding Sotho groups such as the Phuting and the Hlakwana who had themselves been displaced and forced northwards as early victims of amongst others, the Hlubi. In 1823 the Ndebele had reached the Vaal River raiding Kwena and other Tswana groups forcing them to flee westwards. (Maylam, 59)

3. According to Lye and Murray the Difaqane marked the most serious threat to survival the Sotho and Tswana had ever faced (Lye and Murray, 39). The difaqane reached the Southern Sotho about 1822, and every Sotho community from the Drakensberg to the Kalahari fell prey to plundering bands of Hlubi, Ngwane and Ndebele and their Tlokwa and other Sotho victims who had formed bands attacking Kwena and Fokeng villages in the Tswana heartland (Lye and Murray, 31). Many victims of the wars amongst the Southern Sotho found refuge and protection under Moshoeshoe at Thaba Bosiu (Lye and Murray, 35). Marauding bands of destitute Sotho hordes carried the devastation to the Tswana in about 1823 (Lye and Murray, 35), and the Difaqane continued to plague the Tswana until the defeat of the conquest states of the Hlubi, Ngwane and Ndebele reduced the violence. Although most Tswana communities had lost their lands, at least temporarily, and had to rebuild in new areas, the new homes were often in the same general area, although some had migrated for long distances (Lye and Murray, 39)

4. The Difaqane brought long lasting devastation for the Tswana. The Tswana entered the wars segmented into numerous autonomous chiefdoms, who suffered more continuously and over a longer period from the intrusions, and, although most Tswana chiefdoms survived the Difaqane, “they permanently lost their heartland, first to the Ndebele and then to the Boers, who annexed it before the Tswana could return” (Lye and Murray, 51).

5. Although some Tswana chiefdoms’ reconstruction in the aftermath of the Difaqane was with missionary support, some Kwena and Kgatla chiefdoms “retained traditional modes” (Lye and Murray, 51). Following Mzilikazi’s occupation, these chiefdoms succumbed to Ndebele rule and, though “relegated to the status of herders of Ndebele cattle”, they remained, according to Lye and Murray, “intact on their lands” and “reclaimed them at the

end of the wars”, while more powerful chiefs in the west resisted and had to flee. (Lye and Murray, 54)

6. Many chiefdoms survived, although all suffered extensive losses (Lye and Murray, 55). Tswana groups proofed, according to Morton12, remarkably resilient during the turbulent times between 1810 and 1840. The socio-political organizing principle of a royal line to which commoner lines were attached, also survived the Difaqane (Morton, 26) and when the Boers defeated Mzilikazi and the Ndebele retreated further north in 1837, chiefdoms that had fled to more secure areas until hostilities ended, though devastated, regrouped themselves at or near the settlements they had occupied before the Difaqane (Morton, 26). Some chiefdoms though ceased to exist, but even when chiefdoms were destroyed, not all members were necessarily killed (Lye and Murray, 55)

3.3 The Colonisation of the Tswana

1. The intrusion of immigrant Afrikaner Voortrekkers radically interfered with Tswana restoration. After the Ndebele retreat from Vegkop just south of the Vaal and Mzilikazi’s final expulsion by the two commandoes the Voortrekkers, with Rolong (and Griqua) support, mounted against the Ndebele, the Voortrekkers had acquired by right of conquest, a claim to the land the Ndebele controlled (Lye and Murray 60).

2. By right of conquest the Voortrekkers claimed the land north of the Vaal and south of the Limpopo Rivers from the Drakensberg in the east to the Kalahari in the west. As the land the Voortrekkers claimed was extensive and they were few, they initially concentrated on the areas between the Orange and Vet Rivers, between the Vet and the Vaal Rivers and north of the Vaal in the Potchefstroom and Rustenburg districts (Lye and Murray, 60), and according to Lye and Murray “Tswana chiefs found little difficulty finding space for their own resettling” (Lye and Murray, 60).

12 Morton F, 2010. Fenders of Space: Kgatla Territorial Expansion under Boer and British Rule, 1840 – 1920, in: Limb Peter, Norman Etherington & Peter Midgley, Grappling with the Beast: Indigenous Southern African Responses to Colonialism, 1840 – 1930. Brill. Leiden and Boston. 15

3. The Voortrekkers also claimed control of the black populations occupying this vast area, on the basis that they had freed them from Ndebele rule and therefore had acquired mastery over them as their subjects. According to Lye and Murray, several Tswana chiefs could “legitimately disprove any claim of Voortrekker overlordship”. Western chiefdoms such as the Tlhaping, Ngwaketse, Kwena of Setshele and Ngwato remained independent of Mzilikazi (Lye and Murray, 60), while the Hurutshe, Ratlou, Rolong and some Kwena and Kgatla chiefdoms who had been subjected by Mzilikazi, were, according to Lye and Murray, “Mzilikazi’s subjects and, hence of the Voortrekkers” (Lye Murray, 60).

4. The first reaction of the Tswana to the expulsion of the Ndebele by the Boers was to attempt to reclaim their land. Some succeeded because the Boers were too few to occupy all the vacated Ndebele lands, even though they claimed them by virtue of their conquest (Lye and Murray, 55). Many Tswana chiefdoms found their way back to the general area of their old homes, but often under conditions that lead to dissention with the Boers for generations (Lye Murray, 56)

3.4 Ba Kwena Ba Mare A Phogole History

3.4.1 Genealogy of Chiefs

1. The Barolong and the BaHurutse-Bakwena are, according to Breutz, the main Tswana groups, and the Ba Phogole, who dwelt in the vicinity of the current Zeerust district, one of the highest ranked Ba Kwena chiefdoms (Breutz, 112 – 114). The Ba Phogole descended from Phogole from whom descended Khudu, the apical ancestor of the Ba Khudu who had settled in the environs of the current Heidelberg, Mare and Milwana, the founding ancestor of the Ba Phoka and the Ba Fokeng ba ga Motlatla (Breutz, 115). The genealogy of Mare, the founding ancestor of the Ba Kwena Ba Mare a Phogole, is given below as it appears in Breutz (Breutz, 118):

Ngata

Matsukubjana

Lefukumetsi

Mabatlane

Tite

Masilo

Kokosi

Mpone

Mpudi

Thekiso (Born: 1730 – 1750)

Sebogodi (Born: 1780)

2. According to Breutz13, Thekiso was the last chief of the Ba Kwena Ba Mare a Phogole, before the chieftaincy was revived again in the 1960s. Thekiso was born between 1730 and 1750, he ruled from about 1800 and was killed between 1823 and 1830 during the Difaqane, presumably by Hlubi bands. His son Sebogodi, who was born around 1780 was also killed during the Difaqane between 1828 and 1832 by Mzilikazi’s Ndebele while hiding in a cave at Randfontein (Breutz, 119).

3.4.2 Territory

1. A place14 in the Phokeng area in the old Rustenburg district was, according to Breutz, also known as “Mabatlane”, which suggests that at the time of Mabatlane (See genealogy), the Ba Mare a Phogole were dwelling in the vicinities of the Marico and Crocodile Rivers before they settled, during the time of Tite (See genealogy), along the Klip River, they

13 He relied on the oral traditions Lesaba, the second born son of Sebogodi who had passed away in 1935, had told his informant, Jacob P. R. Thekiso, the son of Motitswe Daniel Taamane Thekiso. 14 Breutz refers to the place as “Gwathe” 17

named “Tite”. At the time of Kokosi, the Ba Mare a Phogole were living in the vicinity of the Losberg at Fochville at a place called “Kokosi”, named after Kokosi. Kokosi was, according to Breutz, the last Ba Mare a Phogole capital and Thekiso, according to him, the last Ba Mare a Phogole chief, lived at Kokosi (Breutz, 115).

2. According to the oral traditions Breutz recorded, the Ba Mare a Phogole chiefdom was bounded in the West during the reign of Thekiso, the last Phogole chief, by the Odi (Crocodile) River at Krugersdorp, along the Mooi River in the vicinity of Boons down to Potchefstroom and the Vaal River; in the North the boundary ran from Boons to Krugersdorp and Boksburg; in the East the boundary stretched from Boksburg to a point between Wolwehoek and Oranjeville, and the southern boundary stretched from that point, to a point west of Parys (Breutz, 119).

3. This would be within the area of Sotho -Tswana distribution defined by Legassick (Legassick, 26), and would include the area claimed by the Ba Mare a Phogole.

3.4.3 Socio-Political Organisation

1. According to Breutz (Breutz, 120) the Ba Mare a Phogole was divided, in accordance with old Tswana custom, into the following four clans:  The royal Rakwana clan that included the Thekiso, Motitswe and Kgaile clans;  The Raabe clan, that included the Mafojane, Padi and Modise clans;  The Maloka clan, that include the Mogagabe, Malefetse and Motsumi clans; and  The Mogatla clan that included the Raditlhalo and Ngakane clans.

2. These clans were driven apart during the Difaqane and the Ba Mare a Phogole ceased to exist as a chiefdom (Breutz, 120).

3.4.4 The Ngakane Clan

1. The Ngakane family played an important role in re-establishing Ba Mare a Phogole identity, and as Ba Mare a Phogole history and the establishment of a tribal authority are both closely related to the history, actions and initiatives of descendants of Manthate Shauli Ngakane, the Ngakane genealogy taken from Breutz, (Breutz, 122) is presented here15. Manthate Shauli

Motshume Wildebees

Paulus Dikobe Thepe Marcus

Ramoatshi William (Barney)

15 It will clarify the discussion of the re-establishment of Ba Mare a Phogole identity, the establishment of a tribal authority and the acquisition of land for the Ba Mare a Phogole 19

1. Tim Keegan16 tells “The Life Story of Barney Ngakane” based on the Institute of Race Relations’ interviews with Mr Barney Ngakane17, and the Oral Documentation Project of the African Studies Institute of the University of the Witwatersrand. This discussion takes from both Keegan’s story of Mr Ngakane’s life and the Institute of Race Relations’ transcribed interviews with Mr Ngakane who was interviewed on two occasions at Uitkyk in 1982.

2. According to Keegan the Ngakane clan of the “Bapogole division of the Bafokeng clan”, was displaced by the ravages of the Difaqane wars in the early decades of the nineteenth century, and like many other Sotho-Tswana in the Highveld they became, as Keegan maintains, “members of the new society developing on either side of the Vaal River in the wake of the great expansion of Boer settlement in the 1830s and 1840s”.

3. The incorporation of the black population into the Boer dominated society was as subjects and subordinates of the Boers, and Keegan narrates Mr Barney Ngakane’s story of his grandfather, Tshaoli or “Wildebees”18, as he was known by the Boers, to reveal “something of the agrarian paternalism of Boer society, and their “African clients”. He was, Keegan wrote: “a trusted achterryer (or groom) who accompanied Boer commandos in their raids and assaults on independent black chiefdoms, and was accorded the privilege, regarded apparently as a great honour, of owning a gun. He was indeed a `personal friend' of President Paul Kruger himself, Barney tells us. He remembers vivid the story of the day that Paul Kruger's train came through Vereeniging station. His grandfather was there to greet the old president, and when he stepped forward on the platform the assembled Boer notables shouted, `Keer daar, Kaffir, keer daar!' ('Stop there, Kaffir, stop there!'); but Tshaoli Ngakane, known as 'Wildebees' to the Boers, turned and asked, 'Waar was julle toe Paul Kruger en ek die land skoongemaak het?' ('Where were you when Paul

16 T. Keegan, Facing the Storm: Portrait of Black Lives in Rural South Africa, London, Zed Books, 1988 17 Published in mimeo form in the Institute’s Oral History Series as A Community Man: An Oral History of the Life of William Barney Ngakane 18 According to the Ngakane genealogy given by Breutz, “Wildebees”, Mr Barney Ngakane’s grandfather was Motshume, and his great grandfather “Shauli” or Tshaoli, to whom the mountains on the southern edge of the Witwatersrand were at some time, according to Keegan, apparently named. 20

Kruger and I cleared the country?). The president thereupon fetched a gold coin from his pocket and handed it to Wildebees in remembrance of past comradeship in arms” (Keegan, 69).

4. Though incorporated as subordinates, blacks were an integral component of the agrarian society of the early colonial period, as is evident from the Ngakane family’s history. According to Keegan the “Ngakanes” lived “as far back as family memory goes” in the “vicinity of what became Vereeniging on the southern side of the Witwatersrand, near the banks of the Klip River” (Keegan, 68). Mr Ngakane, who was born shortly after the end of the Anglo Boer War on the 29th December 1902 in a black concentration camp at Vereeniging, confirmed the Ngakane family’s long association with the Vereeniging area. His family remained in the immediate vicinity of Vereeniging when the blacks were allowed to leave the concentration camp after the War because as Mr Ngakane put it “that part of the world had been our … our home” (Ngakane 119, 1).

5. Around 1870 Wildebees and the Ngakane clan were living on a farm belonging to a certain Org Marais, where Mr Ngakane’s father Marcus was born. The younger members of the kin group worked for the landlord, and Marcus worked as a herd boy from a young age (Keegan, 68). Although Keegan does not give the name and location of the farm of Org Marais, it is unlikely that Org Marais owned any of the claimed farms20. Org Marais’s farm should have been somewhere in the vicinity of Vereeniging.

6. According to Keegan the family of Wildebees left Org Marais’s farm some time before the turn of the century because Gabriel, the eldest son of Wildebees, who was the wagon driver on the farm, had one day been tied to the wheels of a wagon and beaten for some misdemeanor. They found a farm further west in the Potchefstroom district on which they

19 First interview with Mr Ngakane 20 A portion of Olifantsvlei was transferred in 1869 to Jacob Marais S Zoon, and between 1860 and 1891 Kromvlei belonged to Sarel Johannes Marais. Gerhardus Petrus Marais was the owner of Portion 1 of Palmietfontein from 1882 to 1911. The western half of Rietvlei was granted to Sarel Johannes Marais in 1856, and from 1894 portions of Rietvlei belonged to Gerhardus Petrus Marais, Christoffel Johannes Marais, Sarel Johannes Marais, Jacob Marais, Jan Gabriel Marais (See Title Deed histories of claimed farms). The name “Org” would be derived from “Georg” or “George”, and no one of the Marais owners of the portions of farms claimed by the Mare a Phogole could have been Org Marais. 21

could settle, and the family absconded overnight with all their possessions (Keegan, 70). At some stage they returned to Vereeniging21, and settled as share croppers on one of the 22 farms forming the Vereeniging Estates and owned by Lewis and Marks (Keegan, 70). Lewis and Marks acquired most of these farms between 1879 and 1886. By 1898, 150 sharecropping tenant families farmed on the Estates farms, and it increased to 240 in 1903.

7. During the Boer War the farm on which the Ngakane families were settled, was used as a concentration for blacks (Keegan, 71; Ngakane 1, 1), and Mr Ngakane was born in the concentration camp on the 29th December 1902, shortly after the war had ended, in the same year his grandfather Wildebees had died. His father Marcus and his brothers, together with a couple of brothers-in-law, continued as sharecropping tenants of the Vereeniging Estates, until 1909 (Ngakane 1, 2) when the family who had to leave the Estates’ land after the Company had imported steam traction engines from England. From the Vereeniging Estates, the Ngakane family, seven separate households of them, - settled on Vlakplaas, the farm of Fanie Cronje22, some 20 miles west of Vereeniging, where the family prospered as sharecroppers and Mr Ngakane’s father Marcus, his brothers Paulus, Elias, Alpheus, William and Gabriel and two cousins Elias and Johannes Nape each had individual sharecrop agreements with the owner, Fanie Cronje.

8. When Cronje wanted to extend the sharecrop agreement to a share of the offspring of the Ngakane family’s cattle, a young man from Johannesburg advised Mr Ngakane’s father to buy his own farm, and took him to Dr Piexly Ka Seme, who was at the time actively engaged in helping blacks, threatened with dispossession and eviction The years between 1905 and 1913 were years of widespread land purchase by blacks seeking, according to Keegan, “to use access to the land market as a weapon of resistance against the forces of dispossession”. In a letter to Mr Ngakane’s uncle Paulus, Seme urged them to go and inspect the farm immediately and to keep the matter confidential, and warned them that “government is about to pass a law which is going to make it impossible for a black man to buy” land (Appendix 4). In 1913, “just before the government passed the 1913 Native Lands Act, the seven Ngakane families who lived at Vlakplaas bought the farm, Klipgat of

21Which could confirm that the farm of Org Marais was in the Vereeniging district. 22 According to the Title Deed history of the farm Vlakplaas 555 IQ Stephanus Christiaan Cronje was the owner of portions of the farm from 1899. 22

1 019 morgen between Boons and Koster in the Ventersdorp district at a cost of 38 shillings per morgen, with seven other partners from the farm Misgund. A single inclusive title deed was issued; and each purchaser was given a subsidiary deed to an indivisible share of the farm. The Ngakane family however did not leave Cronje's farm Vlakplaas until about 1920. They continued to farm as sharecroppers on Vlakplaas, and initially only send their surplus stock to Klipgat (Keegan, 91).

3.4.5 Reviving Ba Phogole Identity

1. Although Breutz provided no information on the Ba Mare a Phogole’s whereabouts during the aftermath of the Difaqane and early Voortrekker colonization of areas north of the Vaal River, including the former Ba Mare a Phogole domain, he did refer to the fact that in 1896, descendants of Thekiso, the last Ba Mare a Phogole chief, attempted to bring the descendants of Ba Mare a Phogole together to buy land and to revive the Ba Mare a Phogole chiefdom. The leader however passed away and the initiative died (Breutz, 121).

2. Vorster’s23 analysis of the Ba Kwena Ba Mare a Phogole history is focused on the restoration of the chieftainship of the Ba Kwena Ba Mare a Phogole, and is prejudiced towards the resurrection of the tribe and the revival of the chieftainship24. His bias towards the Mogagabe version is evident in his analysis of Ba Mare a Phogole history. He accepted that Mogagabe became chief when Thekiso was killed in an alleged bloody battle between, on the one hand, the Rakwena and Raale25 clans and on the other the Maloka and Mogatla clans, and in which the Rakwena and Raale suffered defeat (Vorster, 55, 56). According to Vorster the Rakwena and Raale clans became scattered across the Free State and the Transvaal; Mogagabe fled with the larger part of the BaMaloka clan to Basutoland; while the Mogatla clan trekked around out of Ndebele reach in the Ba Mare a Phogole traditional domain. According to Vorster a section of the Mogatla clan eventually settled on Misgund

23 Vorster L P, Die Bakwena BaMare –A-Phogole met Besondere Verwysing na die Kapteinskap en Politieke Organisasie, M A Thesis University of Potchefstroom, 1969. 24 The institution of a chief was, according to him: “nie alleen wenslik nie maar ook noodsaaklik, because it had revived a “feitlik verdwene stam”, and it was his privilege to attend the inauguration, of the chief on the 24th August 1968 that was characterized by “die formele instelling deur die Blanke voog”, and its “recognition of the tribe as unit and the chief as ordering authority”. 25 “Raabe” according to Breutz 23

along the Klip River, while another section settled on Vlakplaas in the Vereeniging district (Vorster, 57).

3. According to Vorster’s informants Mogagabe was succeeded by his son Mothupi as chief of the Mogagabe in exile, and, as his son Pule was too young to succeed at Mothupi’s death, Malefetse acted as regent. By 1896 “Motshume” described by Vorster as the “hoofman” (headman) of the Mogatla clan on Misgund, was, his informants told him, planning to bring the members of the tribe (stamlede) together. A certain Ngakane, who had returned from Basotuland, informed Motshume that Malefetse, the regent, refused to hand the chieftainship to Pule, and on the lekgotla of the Mogatla clan, it was decided, Vorster maintained, Pule should be brought to Misgund as chief to revive the tribe. “Hoofman” Motshume then send Segano to fetch Pule from the Free State26, and around 1897/1898 Pule settled on Misgund as “kaptein van die stam op Misgund” (Vorster 58, 65). The re- establishment of the chieftainship, the symbol of unity, was, according to Vorster, the first step to unite the tribe.

4. Vorster’s account of the re-establishment of Ba Mare a Phogole identity is in conflict with the accounts of both Breutz and Keegan. According to Breutz, a descendant of Thekiso initiated the attempt to re-establish the chiefdom in the late 1890s, and not the Misgund “headmen” Motshume. In fact, Motshume, it is clear from the Ngakane genealogy and the Ngakane history narrated by Mr Barney Ngakane and told by Keegan, was Wildebees Ngakane the grandfather of Mr Ngakane and the father of Marcus Ngakane and his brothers, who were all at the time sharecroppers on farms of the Vereeniging Estates.

5. Although Breutz referred to the purchase of the farm Klipgat in the Ventersdorp district in 1913, he did not interpret it as an attempt to revive the Ba Mare a Phogole chiefdom. Paulus Dikobe Ngakane was, according to Breutz, the chairman of the group that initiated the purchase of the farm. The group included, besides Paulus Ngakane (who, it would seem never settled on the farm) and his brothers, also Motitswe Daniel Taamane Thekiso, a descendant of the last Ba Mare a Phogole chief, who settled on Klipgat as “voorman” of the chairman. Keegan also described the relationship between the owners in terms of

26 Vorster seems to contradict himself, but it is also possible that Pule found himself in the Free State at the time while Malefetse refused to hand him the reigns. 24

“organisational” principles. According to him Paulus was elected as chairman of the community committee and he was succeeded as chairman by his brother Marcus. While Breutz and Keegan described Paulus Ngakane as the “chairman” (voorsitter) of the group that bought the farm, and Daniel Thekiso the foreman (voorman), Vorster, pre-occupied by the “tribal paradigm”, described Paulus Ngakane as elected “headman” (hoofman) of Klipgat, although he never lived on Klipgat; and his father Motshume as headman of Misgund, although he lived on the farms of the Vereeniging Estates as sharecropper at the time. Vorster understandably, also interpreted the purchase of Klipgat in “tribal” terms. It confirmed the “stam se behoefte aan ‘n stuk grond vir die stam, wat hulle as ‘n belangrike vereiste beskou het vir die heropbou van die stam. Hier sou die kaptein gesag uitoefen op die inwoners binne ‘n bepaalde gebied (the tribe’s need for land for the tribe, which they regarded as an important prerequisite for the resurrection of the tribe. There the chief could exercise authority over residents of a particular territory) (Vorster, 68)

6. Although the Ngakane family bought Klipgat to ensure access to land after they had been warned by Dr Pixley K Seme of the restrictions the 1913 Land Act would impose on black land purchases, the structure of the transaction could have been an attempt to reactivate bonds of kinship and ethnicity. Klipgat was bought by the seven Ngakane sharecrop families from Vlakplaas in the Vereeniging district, together with seven others. The seven Ngakane families from Vlakplaas were:  The brothers, Paulus Ngakane;  Marcus Ngakane;  Alpheus Ngakane;  William Ngakane; and their brothers in law,  Johannes Nape and Elias Nape; and  Elias Ngakane.

7. The seven other partners of the Ngakane families were:  Samuel Thekiso;  Daniel Thekiso;  Simon Thekiso;  Gabriel Ngakane;  Simeon Malefetse; 25

 Edward Montsiga; and,  Gabriel Makelu (Title Deed history of the farm Klipgat, included in Appendix 5: Title Deed History of Farms)

8. Where the other partners came from is not specified by Keegan or Mr Barney Ngakane. According to Vorster Klipgat was purchased by the members of the Ngakane clan from Vlakplaas near Vereeniging, and members of the Ngakane clan on Misgund. However, the other partners of the Ngakane families of Vlakplaas were mainly members of Thekiso families, and not members of the Ngakane clan, as Vorster indicated. Keegan indicated that the shareholders were all related by blood or marriage, and of the same generation. Whether this was indeed the case one would not know, but, while the purchase of Klipgat in 1913 could have established or reinforced bonds and relationships between the Ngakane, Thekiso and other families of Ba Phogole origin, conflict followed suit. Future security of access to agricultural land and not the revival of Ba Mare a Phogole identity and chieftainship was, however, the express objective of the purchase of Klipgat. This is confirmed by a statement made by Mr Ngakane who explained they “were 14 families altogether” who “never allowed any people to join the farms, it was exclusively for them and their families (Ngakane 2, 2). The purchase of Klipgat had absolutely nothing to do with the “stam se behoefte aan ‘n stuk grond vir die stam” as Vorster maintained.

9. In the 1950s the Ngakane family who had, according to Keegan, not recognized a chief for well over a century, though initiated the revival of Phogole identity and the Phogole community at a time when black syndicates or chiefs, on behalf of their followers, bought many farms in the Rustenburg and neighbouring districts that resulted, according to Keegan, in “widespread reactivation of (often historically tenuous, even fictitious) networks of kinship and ethnicity, and a resurgence in the authority of and prestige of chiefly lineages that had in many cases long since ceased to perform any real political function” (Keegan, 90).

10. Mr Ngakane provided the historical background to the revival of the Phogole community: “During the invasions of Mzilikazi and also this young fellow … who was a member of our tribe, Sebetwane who went up across Zambezi to … Barotseland. Now our tribe dispersed

and died out completely and the members were strewn all over the farms. So that in 1952 my dad came to me one day” and Keegan narrates the story told by Mr Ngakane as follows: “My Dad came to me and said, "Now look, we've got our little farm here, but the members of our tribe are all scattered around. Can we do something for them?" And I said, "Yes, Dad, let's do so if we can, by all means." Then we picked them out, picked out the old people and called them together in Orlando, and we told them what we were thinking. And they said to my father, "Well, go on." We went on, and I was secretary to the group. Now the old man was popular with the government officials. He had the respect, let me say, of the government officials. So whilst we were collecting money from the people and banking it, the government came to us and said, `We are going to move you from Boons to here [to Uitkyk]." So my father then said to them, "Yes, good. We can't do anything, but we have taken money from people and told them that we are going to find them a farm. Can you find us a farm?" They said, "What people are those?" He says "The Bapogole, a branch of the Bafokeng." They said, "Yes, we read about them in the books, but where are they?" (Laughs.) My father replied, "Oh, they are all over the farms here." They said, "All right, we'll help you." Then my father died. So I carried on with the work and they [the officials] said to me, "Now look, you are going to settle on this portion which we are giving in exchange for your farm. As soon as the negotiations are through with the man from whom we are buying the other section, we are going to sell that to the tribe." So the negotiations went through, and then they came to me and I paid over the money to them. But not only was `the tribe' reconstituted; a chief had to be found as well. Before Barney's father died, the Ngakanes had said to the Baphogole elders, `Now look, we know that traditionally the chief should be such and such a family.' The family - the Mogagabes - was sought out in the townships of industrial South Africa and a chief was appointed (Keegan, 104, 105).

11. The outcomes of the Ngakane initiative and the removal from Klipgat to Uitkyk that in effect provided the opportunity to find the Ba Mare a Phogole a home, was the following:  The 14 owners of Klipgat were granted 1566 morgen at Uitkyk on the banks of the Great Marico River in the Zeerust district in exchange for the 1019 morgen of Klipgat, and in 1962 the Ngakane family moved to the freehold farm Uitkyk.  An additional 1644 morgen of the Remaining Extent of Uitkyk was granted to the Ba Mare a Phogole, and on the 24th August 1969 Stephen Mogagabe was inaugurated as

Ba Mare a Phogole chief, while his subjects on the Remaining Extent comprised largely Mogagabes from the Maloka clan, and Raditlhalos from the Mogatla clan.  Prior to the removal from Klipgat some members of the Thekiso clan had moved to Vlakpan in the Lichtenburg district, the farm the owners of Klipgat obtained in exchange for the sale of the precious stone rights on part of Klipgat. Four Thekiso families who were part of the 14 owners who did not move to Vlakpan refused to move either to Vlakpan or with the Ngakane family to Uitkyk. Their shares in Klipgat were expropriated in 1961 (Annexure 6). They however remained on Klipgat for another two or three years after the rest had been moved to Uitkyk, and according to Mr Ngakane “then they were detained and went all over the country” while “some died in prison” (Ngakane 227, 2).

12. In 1965 Mr Ngakane wrote the following letter to Mr A Mogagabe (Annexure 7)

27 Second interview with Mr Ngakane 28

13. The initiative of Marcus Ngakane in 1952 to “revive the tribe of Mare-A-Phogole and to find it a home” also brought about the organisation of the Orlando based “Sephogole”. In 1954 the Ba Phogole Urban Council was established. The photo below are the members of the first Urban Council

14. In the 1960s the Urban Council appointed John Mogagabe as the first acting chief of the Ba Mare a Phogole at Uitkyk. This eventually led to conflict (Annexure 7 and 8) and in 1969 the Urban Council appointed Stephen Mogagabe as chief of the Ba Mare a Phogole.

15. The members of the Urban Council were predominantly from the Maloka and Mogatla clans, and by the 1960s the authorities had accepted that the Bakwena Ba Mare a Phogole comprised the following:  Mogagabe of the Maloka clan  Ngakane and Raditlhalo of the Mogatla clan.

16. By then Thekiso and Malefetse no longer had any connections with the Ba Mare a Phogole

4 OCCUPATION OF THE CLAIMED AREA

4.1 White Occupation

4.1.1 From the Voortrekkers to the Anglo Boer War

1. In 1837 the Voortrekkers under the leadership of Andries Hendrik Potgieter and Piet Uys defeated Mzilikazi’s Khumalo-Ndebele. The Voortrekkers then claimed the area that was under Mzilikazi’s control, in terms of the law of conquest (Changuion 31)28. This was a large area: From the Vaal River in the south and “Swartruggens in the west to the Magaliesberg in the east, Africans were informed they were their subjects” (Morton 27) According to Morton the trekkers met little resistance from Tswana groups. Mokgatle, Kgoši of the Fokeng, welcomed Potgieter and offered support. Mokgale of the Po, Mmamogale of the Mogopa Kwena, Pilane of the Kgafela Kgatla, Malok of the Motsha Kgatla, Ntshaupe of the Mosetlha Kgatla and Ramakoka of the Phalane Kwena, as well as some others also recognised the authority of Potgieter and asked him for land (Morton 27).

2. The Gatsrand and Witwatersrand areas included the larger part of the pre-colonial domain of the BaKwena Ba Mare a Phogole, and although the Voortrekkers settled from early on in this area, the Ba Phogole is not mentioned by Morton in this regard, possibly because the Ba Mare a Phogole had by then ceased to be a polity and had, in the words of Mr Ngakane “dispersed and died out completely and the members were strewn all over the farms” (Ngakane 2 4).

3. From 1839 the Voortrekkers occupied the land north of the Vaal River along the Mooi and Schoonspruit Rivers and founded the town they called Potchefstroom. The conquered area was declared state land, held in trust for the white population, and under the leadership of Potgieter the allocation of farms to white farmers in the conquered area began. Farms were recorded (aangeteken) in the Farm Register Book29, and in 1839 and 1840 a large number of farms were allocated in the following areas: Gatsrand, Witwatersrand, Magalies River,

28 Changuion Louis and Steenkamp B, Disputed Land: The historical development of the South African Land Issue 1652-2011, Protea Book House Pretoria, 2012 29 It shows the name of the person in whose name the farm was recorded, the date, the farm name and the location of the farm, referred to as “Omschryven van der Plaats” 31

Magaliesberg, and further to the north west towards the Crocodile River and its tributaries the Elands, Selons and Hex Rivers (Bergh, 12930). The first farm recorded for an area described as “Kliprivier” was recorded in June 1839, followed by a second farm in 1840 (Annexure 9). Though neither of the two farms are among the affected farms, the fact that farms in the Klip River area were recorded (aangeteken) as early as 1839 and 1840, confirms early Boer occupation of the Klip River area.

4. As the trekkers entered, they divided up the land for themselves, demarcating farms in good grazing areas and close to springs. Leyds31 quoted a former Surveyor General of the Transvaal on the beaconing or laying out of farms: “In the early days of the Transvaal all land was vested in Government. When application was made for a farm in open Government ground, the applicant had to determine the middlepoint or “aanvraag” of the farm. It was from this point that the inspectors started riding off distances thirty minutes in directions to intersect the boundaries at right angles. From these intersections further distances of 30 minutes (about three miles were ridden off to determine the positions of the corner beacons, and obtain approval by the Beacon Commission. (Leyds 5). Farms beaconed off in this way were large, between 3000 and 4000 morgen, and the fact that the first Transvaal Agricultural Union Show, held at Potchefstroom on the 20th March 1867, was described as a “decided success”, could suggest that farms in the Potchefstroom district32 that had included Klip River until 1866, were by then, already actively farmed (Gray, 25)33 M G van der Merwe had a mill on Olifantspoort (Gray, 51), and the owner of Rietfontein, a farm adjacent to the affected farms, Willem Lodewikus Pretorius, approached the Triumvirate to grant him a concession to mine for gold on his property because “he did not wish his farm, where he lived in peace with his children, be declared

30 Bergh J S (red), 1999. Geskiedenis Atlas van Suid Afrika. Die Vier Noordelike Provinsies. Pretoria; J L van Schaik 31 G A Leyds, 1964. A History of Johannesburg: The early years. Nasionale Boekhandel 32 Before 1866 the ZAR was divided into the districts of Potchefstroom, Pretoria and Rustenburg. The Witwatersrand was divided between these districts, and each of the three districts of the ZAR had a ward “Witwatersrand” (Gray, 74). In 1866 when the Heidelberg district was formed, the Witwatersrand ward of the Potchefstroom district became the Kliprivier ward of the Heidelberg district, and from then on only the Pretoria district had a division Witwatersrand ward (Gray, 75). 33 J Gray, 1937. Payable Gold. An Intimate Record of the History of the Discovery of the Payable Goldfields and of Johannesburg in 1886 and 1887. Central News Agency. 32

public digging” (Gray, 56), could indicate that farming as a livelihood and agricultural production had been well established in the Klip River ward in the Heidelberg district by 1886, when the gold rush hit the Witwatersrand.

5. The white population of the Witwatersrand steadily increased. According to Leyds “the area had a population of one family every 6 miles or so” in 1885 (Leyds, 3). On the 21st April 1884, the Klip River ward of the Heidelberg district had 124 residents (Gray, 81). Sometime during the 1880s the Heidelberg magistrate informed the State Secretary that in any of the three wards of the Heidelberg district (Klip River, Roodekoppen, and Suikerbosrand) there were not less than 200 burgers. The first payable gold was discovered in the Klip River ward of the Heidelberg district (on the farm Langlaagte), and as a result the population of the Klip River ward and farms in the Klip River ward south of the Goldfields also increased. This is clear from the population figures of the ZAR census of 1890 and the “Burger Lijst” (Citizen’s list) of 1896 of the Klip River Ward.

6. The Main Reef Goldfields were first known as the Heidelberg Goldfields, and in the 1890 census summary of the Klip River ward of the Heidelberg district’s, population figures for the ward are given as follows for Men, Women, and the Total adult population:  Wijk Kliprivier afdeeling Witwatersrand 512 426 938  Wijk Kliprivier afdeeling Witwatersrand 769 590 1368  Witwatersrand Goudvelden wijk Kliprivier, distr. Heidelberg: 183 68 251

7. The affected farms were within these wards of the Heidelberg district, and of the 1464 men resident at the time in the Klip River ward, 296 were farmers (landbouwers en veeboeren), which suggests that the affected farms had by then already a relatively dense farming population.

8. According to the 1896 “Burger Lijst” for the Klip River ward there were more or less 350 “Burgers, stemgerechtigd voor Leden van den Eersten Volksraad” living on farms. Although the farms Olifantsvlei, Misgund and Eikenhof do not appear on the 1896 Citizen’s list of the Klip River ward under the heading “Woonplaats”, it is evident that the farm population were increasing. The Field-Cornet Lists recorded all male residents of farms of 16 years of age and older, and from the 1894 and 1895 lists it is clear that between

15 and 20 men were living on most of the affected farms (Annexure 12). The large numbers of men on the farms resulted from subdivisions. From early on the affected farms were subdivided, and the Surveyor General’s maps below shows the 1894 subdivisions of Alewynspoort and Misgund to illustrate the subdivision of the affected farms

9. Because of the subdivisions most of the affected farms had several owners, as is shown by the number of registered owners of some of the affected farms before 1900.  Alewynspoort No. 249: 10 individual owners, and a company  Bronkhorstfontein No. 294: 3 individual owners  Driefontein No. 176: 7 companies  Diepkloof No. 314: 7 individuals  Elandsfontein No. 235: 16 individuals, and one company  Hartsenbergfontein No. 432: 9 individual owners  Ormonde No 7: 1 company  Palmietfontein No. 220: 2 individuals and three companies  Rietvlei No. 126: 12 individuals and one company  Olifantsvlei 60: 13 individuals

10. Because of subdivisions and the number of owners, the affected farms were actively farmed from early on. Access to and the use of resources such as grazing and water were controlled by ownership (title deed) and servitudes against title deeds of farms, or subdivisions of farms. An annexure to the proposed subdivision of Portion 100 of Alewynspoort into smallholdings marked “Annexure A” (Annexure 14), as well as the sales agreement between Rose Madeleine Smith and Metzger and Company (Annexure 15) clarify the nature of the early servitudes registered against the title deeds of subdivisions of the affected farms. The servitudes regulated access to water sources (an old spring would be used communally); the development of farm infrastructure (the owners of Portions C and D had to share the responsibility of building and maintaining a dam); cultivation (the owners of the original Remaining Extent had to fence their fields with a stone fence – landerijen te omhein met een klipmuur); fencing between farms or farm portions (owners had to share the costs of common fences) and even, it would seem, stocking rates ( right to free grazing for 80 large stock units, 300 sheep and 10 horses).

11. Access to resources was subject to permission and had to be obtained. Land and water were not “free for all” resources. In 1879 during the British annexation of the ZAR Mr C L Neethling requested the Government in a letter addressed to a certain official Mr Osborne, on behalf of L M van der Merwe, D S van der Merwe, J J van der Merwe and P J van Jaarsveld, “proprietors of the farm Alewynspoort”, that a piece of land of about 52 acres of Alewynspoort bordering the Klip River and not properly beaconed, “may be allotted to them”. As the only source of “outwater” on the farm, the piece of land, regarded “as good as useless for anybody else”, was indispensable to them. The matter was considered; the Surveyor General’s office had no objection, but Mr Osborn did not recommend the transfer.

12. As a result of, but also as evidence of the growth in the population of the affected farms, farm schools had been established on the following affected farms:  Elandsfontein, and in 1895 the School Commission requested the Superintendent of Education to send the Standard 1 “boekkie” by mail to Eikenhof (Annexure 17).  Alewynspoort. In 1898 the School Commission informed the Department of Education that 13 pupils had left the school and 3 had enrolled as “gratis leerlinge” (Annexure 18).  Hartsenbergfontein.

13. In October 1899 the head of the Hartsenbergfontein School, Mr H M Muller, informed the Department of Education that as he was summoned to join the Commando, he had to close the school and that he would not be able to determine the date the school would re-open34 (Annexure 19).

4.1.2 After the War

1. After the War education was a priority. In 1907 a school was built on the farm Rietvlei No. 126, on 1.5 morgen acquired from a certain Mr J P Meyer for £20 per morgen (Annexure 20), and in 1911 a school for 150 pupils and teachers quarters were built on Eikenhof that later became the Danie Theron School. There were also schools on Alewynspoort, Zwartkopjes and Hartsenbergfontein to meet the education demands of a growing white population.

2. The population increased for various reasons, but the continued subdivision of the farms and the proliferation of small holdings drew many new residents to the area. Portions of Olifantsvlei No 316. Misgund, Eikenhof, Olifantsvlei No 327, Rietvlei, Alewynspoort, Bronkhorstfontein, Elandsfontein and Tok were all subdivided into small farms and small holdings (See Annexure 22 for some of the subdivisions into small holdings).

3. This changed the character of agriculture and extensive production made way for more intensive and small scale commercial agricultural enterprises.

4. In their statements the owners (6.3) indicated that in the west, north west and north east of the affected area, from Elandsfontein to Nancefield, Van Wyks Rust, Olifantsvlei 316, Misgund, Eikenhof and Olifantsvlei 327 in the north-west, there were largely dairy farms while small holders were allowed to graze their dairy cows at a fee of £1 per month on municipal grazing. The south towards Walkerville, were known for fruit tree farming; and farms around Zwartkopjes and Alewynspoort in the east were known for horse breeding.

34 “Datum van heropening kan ik natuurlijk niet bepalen” 37

5. Both the proliferation of smallholdings and the intensification of agriculture in the area increased the need for labour, and from the early 1900s to the 1960s large numbers of black families came to settle in the area and on the affected farms.

4.2 Black Occupation of Claimed Land

4.2.1 Introduction

1. Besides the archaeological studies referred to in Section 3.1 there is almost nothing written on the black population of the Klip River area and the area south of Johannesburg.

2. Leyds briefly referred to the black population and painted a rather positive picture of the administration of the black population on the Rand. She mentions that:  When the town of Johannesburg had been laid out for Europeans, “an area was set apart as a ‘location’ for Natives” (Leyds 281);

 The goldmines adopted the “compound system” to accommodate their black employees (Leyds, 281);  The “system of forcing a Native to carry a pass” was introduced in 1890 to control movement (Leyds, 290); and,  Notices were “duly served” on the Black families who had to leave Doornfontein before the 30th June 1934, and accommodation “was reserved at Orlando for the Natives who were to be displaced” (Leyds, 293)

3. The focus of Noreen Kagan’s dissertation titled “African Settlements in the Johannesburg Area, 1903 – 1925”, is the municipal area of old Johannesburg35. According to the 1896 census of the Sanitary Committee, Johannesburg had a black population of 14 195 (excluding the 28 338 mine workers who were not under the jurisdiction of the Sanitary Committee) that included 2 404 Basotho, 4377 Xhosa; 5292 Zulu; 1686 people from Mozambique as well as small numbers of Swazi and Shona (Kagan, 13).

4. Charles van Onselen referred only in passing to the Klip River area in his studies of the social and economic history of the Witwatersrand36. He told the story of the AmaWhasha or Zulu washermen’s guild. In 1896 the AmaWhasha, the organisation of Zulu men that provided laundry services in Johannesburg, between 1890 and 1914, were forced to move from their usual washing sites along the Braamfontein Spruit, to the farm Witbank, a two hour journey per rail along the Klip River (Van Onselen, 84) and down south of the affected land. Though the AmaWhasha story is of little significance, the fact that they had to move to a site south of the affected land, could however confirm that by then, the farms along the Klip River were already occupied and actively farmed, and that there was therefore no place for the 600 to 1500 strong Zulu washermen to wash the city’s laundry in the Klip River.

5. Van Onselen also told the story of the Umkosi Wezintaba, (the Regiment of the Hills). He wrote that between 1890 and 1899 the Reef’s Zulu-speaking izigebengu (criminals) had

35 Noreen Kagan, African Settlements in the Johannesburg Area, 1903 – 1925, Dissertation submitted to the Faculty of Arts, University of the Witwatersrand, Johannesburg, for the Degree of Master of Arts. 1978 36 Charles Van Onselen, Studies in the Social and Economic History of the Witwatersrand 1886 – 1914 Volume 2 New Nineveh. Ravan Press, Johannesburg. 1982.

taken refuge in the Klipriversberg hills immediately to the south of Johannesburg. At their mountain hideaway that they called Shabalawawa, this band of criminals of some 200 men, women and children had been living under the leadership of a man named Nohlopa. They survived as “highway robbers” targeting the thousands of migrant labourers moving to and from Johannesburg in the 1890s (Van Onselen, 174 – 176).

4.2.2 The Anglo Boer War

1. The Umkosi Wezintaba’s reign of terror in the vicinity of the affected farms though was insignificant compared to the hardship that would follow the British occupation of Johannesburg on the 31st May 1900. Martial law was proclaimed, Major O’Meara became the military governor (Kagan, 11), and a black concentration camp was established in the Klip River ward on or close to the affected farms. The black population was cleared from the farms and brought to the concentration camp to render services to the British, and not always treated well (Annexure 23).

2. After the Peace of Vereeniging, the black refugees in the concentration camps around Johannesburg were not allowed to move to Johannesburg. The position of the “Native Refugee Department” was that if refugees were allowed into Johannesburg the military government would lose control, and would not be able to repatriate them to the farms they occupied before the war (Annexure 24). Many refugees refused to return to the Boer farms they had occupied, and according to 54 refugees of the “Transvaal Basotho tribes” from “No 2 and 5 Refugee Camps” who objected against repatriation (Annexure 25), they:  Were without the means to start farming  Feared that the Boers would wreck vengeance on them for rendering services to the British; and  Requested that locations should be established for them near towns.

3. The request for locations was rejected, and the refugees were encouraged to seek employment elsewhere if they “dislike the farms where they used to live” (Annexure 26).

4. Like others the Ba Phogole families who had been living on Misgund in 1895, would have been moved to the Klip River concentration camp, and if they had returned to Misgund

after the war, they would have been, like everybody else, without the means to start farming.

4.2.3 Labour and Accommodation

1. The Boers in the Transvaal had, according to Morton, “the ambition of owning farms and getting help to develop them” (Morton 33). The need to obtain labour was the most pressing aspect of white settlers’ relationship with the black population, and from the very beginning farmers were dependent on black labour for their farming activities. This was also the case in the Klip River ward of the Heidelberg district.

2. On the 9th November 1868, petitions from the following wards of the Heidelberg district were submitted to the ZAR Volksraad requesting that a sufficient number of natives be located on a proper farm to provide for the need of farm workers:  Diepkloof signed by Jan Marais the Field-Cornet for Heidelberg  Suikerboschrand signed by H J Campher and others  Klip River, signed by C J Smit and others  Klip River district Heidelberg signed by A du Preez and others (Bergh, 31).

3. A Petition with the same request, signed by the Field-Cornet of Potchefstroom J Furstenberg was submitted to the Volksraad in December 1869

4. The Transvaal Commission on African Labour was appointed in 1871 at a time when 10 districts each with its own Landdrost and civil administration that functioned parallel to the military structure of the ZAR that consisted of a Commandant General, Commandants and Field-cornets had been established. The Commission undertook up to that stage, the most comprehensive investigation into race relations in the Transvaal, and in 2003 the documents of the Commission’s proceedings were published by J S Bergh and Fred Morton under the title “To make them serve …The 1871 Transvaal Commission on African Labour)37.

37 Bergh J S and Morten T, “To make them serve …” The 1871 Transvaal Commission on African Labour, Protea Book house, 2003 41

5. On the 6th September 1871 the Commission discussed the petitions that were submitted in 1868 by the Diepkloof and Heidelberg wards of the Heidelberg district, signed by 48 burgers from these two wards, that was addressed to the ZAR president of the time, President M W Pretorius and members of the Executive Council “the content of which requested that provision be made for labour and the establishment of native locations.

6. On the 29th September 1871 the Commission resolved to summon Field-Cornets Gert Engelbrecht of Gatsrand, Portchefstroom, Jan Marais of Heidelberg, and Joseph Lewis of the Witwatersrand ward Pretoria district to make statements and provide information to the Commission. Joseph Lewis, Field-Cornet for the Witwatersrand ward, testified the people in his ward complained they have no servants, and that there were not enough natives in his ward.

7. This was also the case in the Klip River ward.

8. In 1902 a certain Mr E Sheppard submitted a suggestion to Sir Godfrey Lagden, Commissioner for Native Affairs, to establish a “native location on the farm Rietvlei”, one of the affected farms. According to Mr Sheppard, who apparently served as Native Commissioner for Jeppestown before the War, “a goodly number of Natives have been disturbed in their occupation of outlying places by the Authorities and told they must be prepared to come into the town Location”. Mr Sheppard also planned facilities on Rietvlei for the AmaWhasha from a “large steam of water which would be suitable for the Native Laundrymen of whom, (in normal times) there are about four or five hundred” (Annexure 23). Though Mr Sheppard’s plan, it would seem, was not accepted by Lagden, and the AmaWhasha never moved to Rietvlei, it confirmed the need for accommodation and residential space of the black population who arrived from all over in search of employment, in Johannesburg,

9. Many black families found accommodation on farms in the Klip River area.

10. Because of the need for labour on the affected farms and farms in the vicinity, labour was imported, and accommodation had to be provided. Klip River farmers and smallholders either:

 Employed wage labour, and provided, in addition to a wage and rations, also on farm accommodation.  Employed labour tenants, and provided accommodation for 3 or 4 months service. Labour tenant contracts on the affected farms generally did not include rights to grazing and fields, normally associated with labour tenancy. Labour tenant families on the affected farms rendered services for the right to stay38.

11. But the need for accommodation was also exploited. Land owners owning properties in the claimed area provided accommodation on their properties to tenant families and collected rent using black families’ need for accommodation as source of income.

12. In 1930 the owner of a portion of Rietvlei No 17, A L Bouwer, had 9 huts on his portion of Rietvlei, accommodating eight families and an “indigent and partially blind native” Finish Calf Somfine. When he was given orders by the Police to “close down this private location”, he requested the Department of Native Affairs’ permission for Mr Somfine to remain on the farm. The Chief Native Commissioner Witwatersrand granted the request, but informed Mr Bouwer that “he could not have a private location on his farm”. Mr Bouwer then complained that Jansen, Breed and Cooper and Clasnic who applied “a precisely similar practice”, had not been ordered by the Police to “remove their natives”. The Police investigated the matter and reported on the 26th August 1930 as follows to the Director of Native Labour:  Three of the black families on Mr Bouwer’s farm were not “bona fide servants and they have been warned by Mr Bouwer and the Police to leave the farm and take up residence in a location”, and according to the report the families were leaving that week  All the black families on the farms of Messrs Cooper and Clasnic, Breed and Jansen were “bona fide servants and are rendering the 90 days service according to Law. They don’t pay rent” (Annexure 28).

13. A letter wrote on behalf of Jan Makoko that was eventually submitted to the Native Commissioner early in 1942, Jan Makoko stated he is a labour tenant on a farm of a certain

38 Only one reference of grazing rights was found in the records of the National Archives. A certain Mr Stafford complained that rent paying squatters who should be moved to locations, ruined the veldt with their goats (Annexure 37) 43

Jansens of Rietvlei No 17. He was informed to leave the farm where he had been living for 10 years, rendering 4 months services each year from June to September to Mr Jansens for rights of residence for himself and his family. According to Mr Makoko there were 8 other tenant families on the farm rendering services to the owner at different times of the year. The owner now wanted to force him to work from March instead of June as he used to, which he considered, was contrary to the contract between him and Mr Jansens. The commissioner requested an explanation from Mr Jansens, who denied that the agreement between him and Mr Makoko was that Mr Makoko’s services would commence in June each year. According to Mr Jansens the agreement between him and the tenants on the farm “die vir hul woonplek werk” (who work for their place to stay) is four months per calendar year, determined by the labour needs on the farm. Because Mr Makoko could not commence his service at the time Jansens required his labour, it was agreed that Mr Makoko would find a substitute he himself would pay, to render the services to Mr Jansens. But as a substitute was not forthcoming Mr Jansens informed the commissioner, he had taken “doeltreffende stappe …. om hom van die plaas te verwyder” (effective steps to remove him from the farm) (Annexure 29).

14. On the 3rd March 1948 Mrs. H Pattison wrote “in desperation” to Major van der Bijl, then the Minister of Native Affairs, complaining about:  An Indian neighbour who had “no less than 23 kais on his land”;  A land owner who provided accommodation to 18 black families on 3 acre;  The wealthy farmer, Lombard who took “over £100 per month” in rent from the 200 tenant families on his farm; and,  A certain Owens who was “building a kaffir stad” on his 8 morgen plot (Annexure 30).

15. Minister Piet van der Bijl responded personally to Mrs. Pattison’s complain, informing her that his department would “go into the question of your farm “Eikenhof” at Jackson’s Drift” (Annexure 31). The Director of Native Labour had the matter investigated and a survey of “all uncontrolled squatting” on the farms Olifantsvlei No 16, Misgund No 46, and Eikenhof No 7 was conducted on the 9th May 1948. The whereabouts of the black residents on 15 properties on these farms were established. The results of the survey confirmed that there

was a significant tenant population on the farms Misgund No 46, Eikenhof No 7 and Olifantsvlei No 16 in the area known as Jackson’s Drift:  Number of tenant families: 295 (of which 147 were living on the Lombard farm on Misgund39)  Number married: 429  Number single: 166  Number of children: 836  Total tenant population: 1431

16. According to the director of Native Labour’s summary of the survey, the majority of tenant family heads claimed to be employed on the farms (183); many were employed in the city of Johannesburg (73) or elsewhere (54); while some adults were also unemployed (29).

17. In further correspondence to the Secretary of Native Affairs the Director of Native Labour for Johannesburg confirmed that although the Jackson’s Drift area “suffered through Natives squatting in the vicinity”, there was unfortunately “no clear cut solution” as the squatting around Jackson’s Drift was part of the larger “squatting problem on the boundaries of Johannesburg”. Possible actions to address the problem of squatting in peri- urban areas according to the Director of Native Labour would be to house squatters in “native villages” or in Moroka and to prosecute owners of farms who allowed “private locations on their property” and collected rent from squatters (Annexure 33).

18. The Department however did take action.

19. In the first place, it would seem action against owners was initiated in terms of Chapter 4 of the Trust and Land Act of 1936, in terms of which the specific labour needs of farms would be determined, and surplus tenant families would have to leave. The Director of Native Labour reported that although the “fixing of the number of labourers” farmers were entitled too, was “a thorny or knotty problem” some progress had been made in establishing the labour needs on Mr Lombard’s farm (Annexure 32).

39 At the time Mr Lombard was the owner of portions of Misgund and Eikenhof, and not Olifantsvlei 16 as indicated on Annexure 32) 45

20. On the 30th October 1948 Mrs. Pattison thanked the Minister of Native Affairs Dr. Jansen40 “for moving the hordes of natives from this area” (Annexure 34). This was largely because the number of families on Mr Lombard’s farm had been reduced from 147 to 49 as “a result of police activity” that had forced close to a 100 families to leave Lombard’s farm “to take up residence elsewhere, chiefly in Kliptown, where serious overcrowding already existed” (Annexure 35). Most of the 100 families that had to leave would have been rent paying tenants, but as some progress had been made with the “thorny or knotty problem” of establishing the labour requirements of Mr Lombard, the tenants that had to leave could have included “surplus” labour tenants as well.

21. But, as Mr Lombard employed only 39 of the 49 remaining tenant families on his farm, and as the Police had evidence that some 10 black families paid rent to Mr Lombard for the land or dwellings they occupied on his farm, action was also taken against Mr Lombard in terms of Section 1 of the Natives Land Act of 191341 to “assist the police in ridding the farm of the few remaining families in unlawful occupation” (Annexure 35). On the 25th March 1949 the Secretary of Native Affairs issued a Certificate required to act against Mr Lombard, certifying that no approval had been granted to Mr M S Lombard for “the sale or lease or other alienation of this portion of the farm Eikenhof No. 7 district of Johannesburg, to any Native” (Annexure 36).

22. The collection of rent for accommodation however occurred regularly around Jackson’s Drift, and was not limited to Mr Lombard’s portion of Misgund. On the 3rd August 1949 Mr AE Strafford, the owner of Portion 130 of Olifantsvlei No 16, who complained about squatters on the property adjacent to his 5.5 acre plot, informed the Minister of Native Affairs that although he did “not like telling tales out of school”, many of the small holders in the vicinity of his property, worked in town and derived their “revenue from the Native squatters” illegally occupying their properties. In its response to Mr Strafford’s complain the Department informed the Minister that the squatters are “coloured persons” and that the Department (of Native Affairs) could therefore not take any action, but ensured the Minister that the “squatting problem” of Jackson’s Drift received police attention (Annexure 37)

40 Dr E G Jansen replaced Major Piet van der Bijl as Minister of Native Affairs when the Nationalist Party came to power in 1948. 41 That required Governor General’s approval for the sale or lease of land outside the Scheduled Areas to blacks. 46

23. By 1958 the situation had not changed. On the 9th December the Commissioner for the Witwatersrand informed the Secretary of Bantu Administration that the Inspector of Private Locations had been active in the Eikenhof area and that the inspector “trapped” 26 illegal squatter families of 51 souls, and that 25 families with a “sieletal” of 47 were removed. Though the scale of squatting would have declined significantly by the 1980’s due to peri- urban control measures, land owners still allowed employees to illegally squat on their properties, as is clear from a certain Mr Valcke’s letter to the Oranje – Vaal Administration Board (Annexure 39).

24. When Mrs. Pattison thanked the Minister of Native Affairs for the removal of squatters from Jackson’s Drift, she also requested the Minister’s approval for the residence on her farm of Jack Swanyoni, Sannie Medea, Jacob Gule and Nicolaas Coka (Annexure 32). According to the Secretary of Native Affairs the matter had to be dealt with in terms of Act No 25 of 1945, the Natives (Urban Areas) Consolidation Act because Jackson’s Drift is within 5 miles of the urban area of Johannesburg. Approval was granted to Jack Swanyoni in terms of either Section 15 (1) if he was bona fide employee, or in terms of Section 15 (5) (f), if he was a labour tenant as defined in Act 18 of 1936, the Trust and Land Act. Jacob Gule and Nicolaas Coka, though were not in her employ, and they required, it would seem special approval in terms of Section 15 (1), which was eventually granted, based on their special circumstances. It was also suggested that they could be accommodated in the Moroka Emergency Camp (Annexure 39).

25. From the following it is clear that, from at least 1913 bona fide wage employees and labour tenants who rendered 4 months services per calendar year to property owners in the affected area, were, in terms of different pieces of legislation, legitimately occupying the land. Rent paying tenants who paid rent for accommodation to land owners in the affected area were regarded as squatters and were illegally occupying the properties

26. Though the residential rights of employees and labour tenants were recognized, in peri- urban areas these rights became subject to changing legislation, and in particular to:

 The application of Chapter IV of Act 18 of 1936. The overall objective of Chapter IV of Act 18 of 1936 was to control farm labour. It distinguished between farm labourers, labour tenants and squatters or rent paying tenants, and according to the provisions of Chapter IV only “registered” farm employees, labour tenants and squatters could 47

legally occupy or stay on farms in the Transvaal. Chapter IV also provided for the eventual termination of the system of labour tenancy Following the Commission of Enquiry into the system of labour tenancy in 1964, the 1936 Land Act was amended to make provision for the abolition or limitation of labour tenancy. The amendment was implemented per district and by January 1969 labour tenancy had been abolished in 25 of the 85 districts in which it had been practiced in the Transvaal (SPP 120). No new squatter contracts could be made in the Transvaal after 1913, and by 1970 new labour tenant contracts had been prohibited in most if not all Transvaal districts. After August 1980 labour tenancy as a form of farm labour was made illegal throughout South Africa (SPP 68).

 Act No 25 of 1945, the Natives (Urban Areas) Consolidation Act that had to control the influx and settlement of black people in urban areas also gave local authorities responsibilities to provide housing to blacks in urban areas.

 The Prevention of Illegal Squatting Act, No. 52 of 1951 that had to prevent squatting and clean up existing squatter areas .

 The Natives Resettlement Act, No. 19 of 1954 that empowered the Minister to clear up undesired residential areas in urban areas and resettlement in planned residential areas

5 STATEMENTS AND EVIDENCE: CLAIMANTS

5.1 Introduction

1. According to RLCC procedures physical evidence of claimants’ occupation of land and claimants statements on their rights in and their dispossession of their rights in land, are obtained through in loco inspections. The claimants however refused in loco inspections and further investigations to assess the merits of the claim on the basis of an order of the Land Claims Court, instructing the Commission that the claim is compliant and the Commission should gazette the claim. In their view the only outstanding issue for investigation at that stage was the description of the claimed property in order to gazette the claim. As claimants refused to cooperate, physical evidence of Ba Kwena Ba Mare a Phogole occupation of the land they claim, could not be recorded, and statements and oral histories could not be collected. In order to assess the claim, claimants statements on the rights in land they had, had to be reconstructed from documents, statements that appeared in the media and the report by Dr S N Phatlane, History and Impact of Apartheid on Bakwena Ba Mare a Phogole, claimants had commissioned in support of their claim.

5.2 Documents

5.2.1 Report: Phogole Land (Tite) Zonal and Historical Land Marks Updated Report

1. The report by a team of claimants and regarded as “work in progress”, identifies land marks within each of the demarcated Zones in the area the Ba Phogole claims:

2. Zone 1: Kgotlong, includes the current Comptonville and Naturena and is the birth place of Daniel Raditlhalo, Janta Molenga and Martha Ngakane. The Mokgethis were removed from Kgotlong in 1976, and their gravesite is located along the N1 north near Rand Water installations

3. Zone 2: Tsorogwane Valley includes Eldorado Park and the great river Tite (Klip River) that was sometimes flooded and then the livestock had to be moved to Kgotlong or Toko to dry land. Thabana ya Mantate is a another major land mark, while the following land marks were also in the Tsorogwane Valley:

 The prison built by the government of the white farmers

 The “Skiet” were the Ba Phogole had to sell their cattle to meet the “stipulated numbers because of the Boers control of “free crop and livestock farming”

 The deep gold pits prospectors dug that force Ba Phogole from good grazing land

 The ruins of the old Lutheran Church, that also served as school

 The farms of the Lombards, Mojuta the Jew, and Satan van der Merwe

4. Zone 3: Motlhatlhafung, bordered by Thaba tsa Saule included:

 Madimatle fountain;

 Klip River Nature Reserve and Thaba ya Batswana; and

 The residential areas of Kibler Park, Mondeor and Meyerton

5. Zone 4: Manong, the area that includes Walkerville, Eikenhof and Pompi (Rand Water) has Thaba ya Manong , the sacred mountain as major land mark as well as:

 The gravesites of Dibos, Mabitla a Motshele and Mabitla a Elandsfontein

 The homestead sites of Motshele, the in-laws of Nkoko Martha Ngakane, and Richard Raditlhalo

6. Zone 5: Toko, the high ground, known today as Zacharia Park that served as cattle outpost when Tite was flooded.

5.2.2 Founding Affidavit by Jacob Ngakane

1. In a Founding Affidavit in the matter between the Ba Kwena Ba Mare a Phogole and the RLCC Gauteng and North West heard in the Land Claims Court, Jacob Ngakane declared under oath as follows:

 Paragraph 3.2. The Applicant is a community which comprise of a group of families. The Applicant has lived and used the area known to them as Kgotlong, Tsorongwane

Valley, Motlhatlhafung, and Manong since the 18th century and regarded themselves as part of the Bakwena Mare A Phogole under Chief Pule, Chief Raditlhalo, Chief Mogagabe and Chief More over various periods of times, prior to them being forcibly removed.

 Paragraph 7. The Bakwena Ba Mare A Phogole community consisted of numerous households spread all over areas known to them as Kgotlong, Tsorongwane Valley, Motlhatlhafung, Manong and Toko. Each household had its own individual cropping field. Their cattle grazing communally

 Paragraph 8. Between 1969 and 1980 Bakwena Ba Mare Phofong community … were forcefully removed from Kgotlong, Tsorongwane Valley, Motlhatlhafung, Manong and Toko due to apartheid and its indiscriminate laws associated therewith

 Paragraph 9. After the forceful removal “the community were dispersed to various places in South Africa

 Paragraph 10. The community was not given money, land, housing or anything else to compensate them for the land loss caused by the forced removal

 Paragraph 11. As there was insufficient land for the grazing of cattle and cultivation of crops in the alternative land where the community members resettled, and as the circumstances of the community had changed, the community eventually lost all their cattle and crops.

5.3 Individual Declarations

5.3.1 Introduction

1. The statements of individuals presented here are statements that appeared in the media and in the research report prepared by Dr. S N Phatlane.

5.3.2 Moses Molenga

1. Moses Molenga, a 80 year old pensioner from Moletsane was born in the area, known as Misgund (a place of mist) in 1931. They were forcibly removed in the early 50s, and the more than 300 families who lived there are scattered all over the Reef. Several graves of 51

their forebears can be found near Kibler Park, some of which date back to the 1800s. Further proof that this is their ancestral land: when the new N1 between Johannesburg and Bloemfontein was mooted in the early 1980s, they met the authorities to ask them not to interfere with the graves near Grasmere. He said their demands were finally heeded.

2. “I grew up in this area. I used to herd my father’s cattle around here until we were told that Africans were only allowed to keep a small herd. We were subsequently reduced to no more than labour tenants of the white farmers”.

3. In the Phatlane report Mr Molenga’s date of birth is specified as the 31st May 1931, and the family were forcibly removed by peri urban officials in 1952

5.3.3 Martha Motshele

1. As the oldest member of the clan, the granddaughter of Saul Tshaoli Ngakane, Martha Ngakane- Motshele, of White City Jabavu, Soweto sings her clan praise poem: “Ke Phogole Phogole duma, Pheleu e boko bothata …...”, The area she lived in was Tsorogwane. It comprised several farms and more than 80 portions were registered to private individuals, including Joburg City. “What you know as Kibler Park, we used to call by its historical name of Motlhatlafung. “We are still aggrieved about the manner in which our graves were dealt with in the process of establishing this suburb. Some of the graves were destroyed to give way to Kibler Park,” she said.

2. Motshele said Eagle Mountain at Walkerville, which they used to refer to as Thaba ya Manong, was among the most sacred areas of Tsorogwane. “No one would dare point a finger at Thaba ya Manong. To show respect for the sacred nature of the place, either a leg or a tongue would rather be used to point at it rather than a finger, as is common practice. It is also believed that anyone who dared go up this mountain never came back,” she said.

3. Ngakane- Motshele also claimed that part of the farm they lived on was used during the South African War of 1899-1902 by the British as an African refugee camp42. Ninety-nine and a half years old Mamorakane Ngakane – Motshele has two wishes before she dies. She would like to meet South African President Jacob Zuma and tell him “ngwanake, lefatshe la rona le tserwe “(my child, our land is taken). The return of her forefathers’ land would be the best present for her centenary birthday celebrations, next February. She would then die a happy person - and forever rest in peace.

4. She becomes animated when she reminisces about the land her clan once called its own; a land for which she still harbours fond memories. “We had everything at Tsorogwane: sheep, goats and cattle. Dispossessed of our land and with no livestock or crops to sustain us, we became labour tenants in the land of our forefathers before they shipped us off to Soweto and other places,” recalls grandma Ngakane-Motshele as a lonely teardrop courses unattended down her right cheek.

5. “Even if we can’t get all the land back, let us, at least, get Tite, which contains our traditional burial grounds and is where our forefathers lie buried,” she says. Tite is the place

42 The Ngakane family were refugees in a camp at Vereeniging, where Mr Barney Ngakane was born in 1902 (3.4.4), although there was also a concentration camp in the Klip River area. 53

where the clan first settled on the southern part of the Witwatersrand, on the banks of Noka ya Tite (Klip River) as far back as the 14th century. Grandma Ngakane-Motshele has been living in Jabavu, Soweto since the final forced removal of the Bakwena-ba-Mare-a- Phogole from their Tsorogwane ancestral lands, south of Johannesburg, by the apartheid regime in the 1960s.

6. In the Phatlane report Mme Martha Motshele also refers to:

 Madimatle at Elandsfontein that never went dry and on which the community could rely for drinking water as well as water for their livestock during periods of drought;

 Maphogolestad, next to their former post office at Eikenhof

5.3.4 Daniel Raditlhalo

1. Anger fills Daniel Raditlhalo's face as he gingerly walks with his stick inside the broken walls of a building that was once his school more than 70 years ago. The 80-year-old man's family is one of hundreds of Bakwena Ba Mare A Phogole who were forcefully removed by the apartheid government in the 1950s from Motlhatlhafung Village near Naturena, south of Johannesburg.

2. During the forced removals, which took place over 20 years, many families sought refuge in Soweto, leaving their cattle and homes behind. The removals were carried out by police who used sjamboks on anyone resisting their orders. The amendment of the Native Urban Areas Act in 1927 enabled the government to relocate people without first providing them with accommodation.

3. The old gravesite and Thaba Ya Mantate, a mountain where villagers prayed for rain, are some of the prominent features that are still found in the village. Wesile Primary School, 54

which also doubled as a church, was once the pride of the people of Motlhatlhafung. The one-room hall accommodated three grades taught by one teacher. As a result of the removals, the building is now being used as a dumping site. "My heart aches whenever I think about the good old days. We were happy. Food was in abundance. We had cattle and there was always a reason to slaughter and celebrate. People cared for each other," said Raditlhalo, who now lives in Moletsane, Soweto.

4. His family was removed in 1956. "There was no written notice. We were just told that we have three months to vacate the land. We tried to resist. One day the police on horseback came to our home and forced us out with sjamboks. "I was hit with a wire and my nose was cut," said Raditlhalo pointing at cut on his face. "Soweto was the only place where we could go. It took me years to adjust to township life. I was introduced to poverty, crime and noise. I still resent white people. They don't know the harm they caused us," he said.

5.3.5 Dineo Ngakane-Setshedi

1. Mme. Dineo Ngakane-Setshedi, 67, was 21 years old when police raided her home in 1968. A policeman's sjambok cut the skin on her leg. Her family relocated near Eldorado Park. "This place is still close to my heart. Whenever my grandchildren were sick, I would take them to the ruins of the hut where I was born. [I'd] rub their foreheads with the dust from the ruins and talk to the ancestors at their graves and they would feel better," she said. "I want my parents' land back. We have lots of expertise to develop it and it worries me that our claims are not being taken seriously by the courts. I will die fighting for this," she said.

5.3.6 Anna Mochane Raditlhalo

1. Mme Anna Mochane Raditlhalo a former resident of Motlhatlhafung was born on the 14th August 1931 and “grew in a farm owned by her father” and they “used to plough the fields and kept a herd of cattle”. In 1960 she and her family were forcefully removed by officials of the then Peri-Urban to their current residence in Diepkloof house number 7517, Zone 3”.

5.3.7 Johanna Kali Raditlhalo

1. Mme. Johanna Kali Raditlhalo was born in 1947 on a farm known as Kgotlong. Her parents Amos and Johanna Raditlhalo worked for Mr C Lombard and they had a house on the farm

and attended school at All Saints College. The family were forcefully removed from the farm by officials of “Peri Urban” who made trucks “immediately available to move the family to Meadowlands”, and they had to leave behind their cattle and the graves of their ancestors on the farm.

5.3.8 Mogapi Gabriel Mogagabe

1. Mr Mogagabe was born at Toko on the 4th February 1932, His grandfather resided at “Bosrankie”, and he educated him on the history of Ba Phogole. He remembered the members of the special appeals committee representing the Ba Phogole in negotiations with the authorities. They were Steven Sefutswelo Mogagabe, Herman Maselwane and Zacharia Mokheti

5.3.9 Elijah Khosane Ngakane

1. Mr Ngakane was born on the 22nd September 1939. His father told him to remember Tite. He told him the whites came in the “guise of seeking help and later overpowered the clan of Baphogole and subjected them to servitude, took their livestock and almost left them with nothing.

5.4 Dr. S N Phatlane: History and Impact of Apartheid on Bakwena Ba Mare a Phogole

5.4.1 Introduction

1. The report, commissioned by the claimants is included as Appendix ZZZZ and can be read in its entirety. Issues that are crucial for the assessment of the claim are however highlighted here.

2. Dr Phatlane regards the “suggestion that Bakwena Ba Mare a Phogole left Tsorogwane and thereby ceased to live in and around the area as a result of Mzilikazi in the first half of the nineteenth century, thus further suggesting that the land was open for white settlement” as a misrepresentation of “traditional historians” of the Difaqane and its aftermath, because it “cannot stand honest scrutiny”.

3. He argues that “the fact that the Bakwena Ba Mare a Phogole trace their uninterrupted settlement at Tsorogwane back to the 14th century”, “is not in question”, because “their early history and that of the Tswana people of this country is but one history”.

5.4.2 The Batswana and the Ba Kwena Ba Mare a Phogole

1. According to Dr Phatlane the Bakwena-ba-Mare a Phogole are Tswana people of South Africa, and although the “exact origins of the Batswana tribe are still shrouded in mystery,” (p 4) “there can be no doubt that the area around the southern part of Johannesburg is the original land of the Batswana people of South Africa”. Most Tswana people today therefore “justifiably trace their origin from the Johannesburg region” (p 19), while the “Bakwena- ba- Mare a Phogole themselves had settled on the southern part of the Witwatersrand on the banks of the Klip river, under the traditional leadership of Mogagabe” (p 19)43.

5.4.3 The Difaqane and the Ba Kwena Ba Mare a Phogole

1. Although Dr Phatlane admits that “like all Sotho tribes of the Transvaal at the time, the Bakwena became victims of the ravages of Mzilikazi’s march to the north”, and that its “devastating impact on the Tswana in general and the Bakwena Ba Mare a Phogole in particular ... cannot be denied”, he insists that the “view that this entire group of Batswana were scattered all over the place including the North-West, up to Madikwe region by the Mzilikazi wars is devoid of any truth, particularly if it seeks to suggest that the Bakwena as a tribe thereby ceased to stay around the southern part of Johannesburg” (p 12). He claims that there is “a wealth of historical evidence to illustrate the point that in spite of Mzikikazi’s interruption of their lives the majority of Bakwena still continued to stay in the Witwatersrand region until the Union Government’s adoption of the Natives Land Act of 1913 and beyond. Further proof, are the historical graves of Bakwena Ba Mare a Phogole within the borders of the tribal land going back as far as 1835, 1923, 1935” (p 12, 13)

5.4.4 Land Ownership and Land Occupation

43 The reference to this statement is BAO 5/371 F54/1528/14 Kapteins en Hoofmanne, SS. Mogagabe Stam – Bakwena Ba Mare A Phogole 1896. 57

1. Although, according to Dr Phatlane, collective indigenous ownership succumbed through settler dispossession to registered title deeds, it is, nevertheless, to him “not clear how the land known as Tsorogwane came into white hands”, and how white families “came to own the farms and from whom they purchased them because the Batswana had resided on the land long before any white settlement in the Transvaal” (p 21).

2. According to Dr Phatlane the Ba Phogole had “unlimited communal rights” to the land at Tsorogwane, and when the first white men came to settle around Tsorogwane, they found the Bakwena holding indigenous title to the land. From the 1840s and 1850s however, ownership of Tsorogwane was transferred to whites, and according to him, there is therefore “no denying that the Bakwena Ba Mare a Phogole lost their indigenous ownership of Tsorogwane even prior to 1913, and they were “henceforth compelled to become labour tenants of the new owner” (p 20). He maintains however that “existing oral evidence suggests that even though they had lost indigenous ownership of the land, Bakwena Ba Mare a Phogole continued to exercise the right to occupy the land, to raise crops and graze their livestock” (p 21).

3. In the course of time the Bakwena Ba Mare a Phogole, Dr Phatlane continues, lived on a farm owned by Org Marais44, and when gold was discovered in the Witwatersrand in the mid-1880s, “in spite of Mzilikazi”, Bakwena Ba Mare a Phogole were still residing in the vicinity of Vereeniging. Before the turn of the century they moved further west into the Potchefstroom district only to return to Vereeniging to the land owned by Marks and Lewis that was, he speculated “obviously sold under their feet” reducing the Ba Phogole to no more than labour tenants of the white farmers (p 23). The farm, he carries on, was used during the South African War as an “African refugee camp”, and after the war the “maPhogole remained and tried to rebuild their lives on the farm as sharecropping tenants of the Vereeniging Estates Company”. But when the company imported steam traction engines around 1907 or 1908 that improved production, the maPhogole, left with no option but to move off in search for alternative land, settled on Vlakplaas to the West of Vereeniging owned by Fanie Cronje (p 30). On 13 May 1913 “about 14 baPhogole” like most African communities in a similar situation, left Vlakplaas and purchased the farm

44 In the same breath he referred to the formal sale of Misgund in 1895, which could be seen as a suggestion that Marais farm could have been Misgund. 58

Klipgat through the legal assistance of Dr Pixley ka Seme, as a precautionary measure, “but without totally forsaking their historical land as they continued to bury their dead at Tsorogwane (Misgund) (p 32).

6 STATEMENTS: LAND OWNERS

6.1 Introduction

1. The Statement of land owners on the history of the occupation of the area and the affected farms in particular is compiled from a report45 based on interviews with 9 residents46 of the affected farms, as well as additional information obtained from other elderly residents. The focus is on family history and farming activities in the area as well as early education and farm labour.

6.2 Family Histories

1. The descendants of some of the old families that occupied the area are still living on some of the affected farms, and they provided their family histories as evidence of their families’ occupation of some of the farms for more than a 100 years. The descendants of other old families though have left the area, and memory and their family graveyards are the only evidence that these families had been living on the affected farms for three of four generations.

2. Christiaan Ludolph Neethling (born in 1835) and his wife settled in the area in 1868 (See photo below). He acquired portions of the farms Misgund and Olifantsvlei that he consolidated into the farm Eikenhof. Christiaan Ludolph had seven children, and before his death in 1907 he had subdivided Eikenhof for eventual inheritance into portions stretching across the Klip River over Klipriviersberg. The families of the following land owners who are fifth and sixth generation descendants of C L Neethling have been living on portions of Misgund and Eikenhof for more than 145 years:  Chris Lombard and Michael Lombard  Imker Hoogenhout  Gys Potgieter  Arin Burden

45 Included as Appendix 6 46 Included because of their knowledge of the area. Seven represented land owners and two were former employees whose families have been in the area for 50 years or longer, 60

3. Joseph Joshua Wilkinson who arrived in the Cape from Scotland, came to the Transvaal in 1880 and settled on the farm Elandsfontein. The following land owners are descendants of Joseph Joshua Wilkinson whose families have occupied portions of Elandsfontein for more than 125 years:  Sannie Kamffer, a third generation descendant  Joe Wilkinson a fourth generation descendant;  Joshua Wilkinson, a fifth generation descendant on Elandsfontein.

4. The following are some of the third generation residents of the affected farms:  Manny Soares is the third generation of this Portuguese family producing vegetables on Eikenhof/Misgund  Fritz Weilbach’s grandfather farmed on Olifantsvlei (East of Eikenhof), and his father had a filling station and tea room at Eikenhof  Tertia van der Linde’s grandfather Bill Owens was a dairy farmer north of the Klip River on Olifantsvlei (close to current the Kiblerpark) where he also farmed with pigs and peaches.  Elmarie Wilkinson’s grandfather, N J du Toit had a dairy at Kliptown, and her father and mother are still living in the area

The cemetery of the Strydom and Labuschagne families

The cemetery of Marais en Vermeulen families in the Klipriviersberg Nature Reserve close to the ruins of home of a Voortrekker Sarel Marais.

The Snyman, Van Der Merwe, Van Der Walt, Muller en Van Zyl cemetery in the Alewynspoort Zwartkopjes area

6.3 Farming

1. In the past the Klip River area was a productive dairy, fruit tree, vegetable, cattle, pig and chicken farming area.

2. In the west around Nancefield, Van Wyks Rust, Olifantsvlei, Eikenhof, Misgund en Elandsfontein (316), dairy farming was the main agricultural activity and the Lubbes as well as the Jewish farmers Tannenbaum and Grünebaum, were well-known dairy farmers. North of the Klip River and at Nancefield were large farms owned by the Municipality where smaller dairy farmers could graze their cows at £ 1 per month. Vegetables and maize were also grown in these areas. In the south at Walkerville, Walker’s Fruit Farms and Homestead Apple Orchards had planted half a million apple trees by 1918, and by 1931 they had expanded their orchards to 4 million trees, at the time the largest apple orchards in the Union. The east (Alewynspoort en Zwartkopjes) is still known as a horse breeding area and in the north east (Liefde en Vrede) there were also some dairy farmers.

6.4 Labour

1. The main farming activities were labour intensive and the fruit farms at Walkerville, Herold’s Rose Farms and other nurseries, the Portuguese vegetable farms, the many dairy farms as well as the Lombards, employed many workers.

2. According to owners and employees interviewed:  Labour had to be imported, and workers from Xhosa, Zulu, Venda, Shangaan, Pedi and other origins, and from all over the country were employed on farms in the area, because locally labour was not available.  Labourers were paid wages and rations, while Thamie’s father kept a few head of cattle and sheep on the Lombard’s land.  Labourers were provided on-farm accommodation, and workers whose homes were in the mountains herded farm owners’ cattle. Some employees employed on Misgund and Eikenhof farms, lived at “Mapokstad/Mapogstad”.  Labourers were not forced to move or evicted, but left voluntarily, and the homes they occupied were available for other workers who replaced them.  Relations between owners and employees were generally good, and some of the black families on some of the farms have been employed by the same family for over 30 years

6.5 Education

1. When the head of the Hartsenbergfontein School, Mr H M Muller, informed the ZAR Department of Education in October 1899 that the date “van heropening kan ik natuurlijk niet bepalen” (4.1.1), he did not realise that education in the Klip River area would have to be re-established after 1902. The photos of the first post-war school in the Eikenhof area and the school at Alewynspoort are evidence of the re-establishment of education in the claimed area.

The Alewynspoort School: A National Monument

2. The historical significance of the development of white education and the Danie Theron School in particular, is described in Appendix 6. Owners however emphasised the fact that education was extended to other communities as well. The Rooiskool, established in the early 1900s, provided education to the coloured community, and the 70 year old Mme Loekie Stefaans attended the “Rooi Skool”. Currently the school and dwelling that is north of the Klip River is used as a church

The “Rooi Skool”

3. Later Mr John van der Merwe, the grandson of Christiaan Ludolph Neethling and the grandfather of one of the current owners of Eikenhof build a school for the black children on the farms, that doubled as church on Sundays, and the 60 year old Mme Koekie Mojake, the great granddaughter of Mme Anna Kupido who lived on Eikenhof, attended school in “oupa John se skool”, when the teacher was a certain Mr Mampai.

6.6 The Claim

1. The current owners reject the validity of the claim, and besides family histories that dates back as far as 1868, graves and buildings that confirm white occupation of the farms for almost 150 years, Ba Phogole occupation of the area is disputed. In this regard owners quote Leyds who wrote that it should be clear that there were in “1886 no Native tribes living on or near the Rand, of which Johannesburg is the centre. The nearest land occupied by Natives as tribes was north of Rustenburg, at least 70 miles away. They were never dispossessed of any land on the Rand because they were not there to be dispossessed”.

2. The following blacks whose families have been living in the area for three or four generations: Pienkie Mokone, Loekie Stefaans, Elja Jubela, Koekie Mojake, and Kokok Mxena, as well as the following whites: Elmarie Wilkinson, Gys Potgieter, Fritz Weilbach,

Colleen Du Toit, John Du Toit, Imker Hoogenhout, his mother Marie Hoogenhout and Chris Lombard, had been asked if they know whether anybody, or any families with the following family names ever lived in the area: Mokgethi, Molenga, Raditlhalo, Ngakane, Mogotsi, Ramela and Mogagabe. Mme Pienkie Mokone and Mme Koekie Mojake recognized the family name Mogotsi, who was according to them, a Tswana and a Minister at “Lombard se kerkie” who had left long ago. The rest did not know any of the family names, nor had they ever employed somebody with any of these family names.

7 THE AFFECTED FARMS

7.1 Ownership and Title Deed Histories

1. A total of 23 parent farms are affected by the Ba Mare a Phogole claim. The dates of the first transfer of the farms’ Title Deeds are shown in the table below, and the Title Deeds of seven of the affected farms were registered before 1860; the Title Deeds of seven were registered between 1860 and 1869; the Title Deed of one farm was registered in 1870; three were registered between 1895 and 1899; the Title Deed of one farm was registered between 1900 and 1910, and two farms were registered after 1913. All the farms registered after 1870 are however, subdivisions or consolidations of farms registered between 1853 and 1869.

Parent Farm Date of First Transfer of Title Alewynspoort 145 IR 1853, Whole of farm to Jeremia Jesajas van der Merwe Bronkhorstfontein 329 IQ 1854, Government Grant to J P A Venter, and from J P A Venter to Erasmus Albertus van der Merwe Cyferfontein 333 IQ 1861, Government Grant to Hendrik Greyling Diepkloof 319 IQ Driefontein 143 IR 1870, Government Grant to Gideon Jacobus Christoffel Petrus van der Schyff Eikenhof 323 IQ 1904, Certificate of Consolidated Title to Christiaan Ludolph Neethling. Consolidation of Remaining Extent of Portions 2 and 7 of Olifantsvlei 327 IQ and the Remaining Extent of Portion 1 and Portion 42 of the Farm Misgund 322 IQ Elandsfontein 334 IQ 1860, Government Grant to C H Viljoen Hartsenbergfontein 332 IQ 1861, Government Grant to Hendrik Balthaser Greyling Kromvlei 142 IR 1860, Whole from Government Grant to S J Marais Liefde en Vrede 104IR 1914, Certificate of Consolidated Title to Johannes Petrus Meyer. Consolidation of Rietvlei

Misgund 325 IQ 1859, Government Grant to Martha Maria Lindeque. Muldersrus 330 IQ 1954, Certificate of Consolidated Title to Susanna Margaretha Mulder. Consolidation of Portion 9, Remaining Extent of Portion 10 and Portion 1 of Bronkhorstfontein 329 IQ; and Portion 16 and Portion 23 Hartsenbergfontein 332 IQ Olifantsvlei 316 IQ 1861, Government Grant to Willem Hendrik Steyn. Olifantsvlei 327 IQ 1862, Government Grant to J Henneke, from J Henneke to Frederik Gerhardus Wolmarans, and from F G Wolmarans to Petrus Jacobus Bosman Ormonde 99 IR 1898, Government Grant to The South Deeps Ltd Palmietfontein 141 IR 1859, Whole from Government Grant to Christiaan Ernst Gerhardus Labuschagne

Petrusvlei144 IR 1899, Whole to the Government, and from Government grant to Nederduits Hervormde Kerk of Gereformeerde Gemeente Rustenburg Rietvlei 101IR 1856, Western half from Grant to Sarel Johannes Marais, and, 1859, Eastern half of farm from Government to Andries du Preez Roodepoort 149 IR 1855/65, Government Grant to P Dietricksen Tok 315 IQ 1896, Government Grant to Jan Gert van Deventer Vierfontein 321 IQ 1869, Government Grant to Christoffel Johannes Smit Waterval 150 IR Zwartkopjes 146 IR 1853, Government Grant to G van der Schyff and J G Meyer

7.2 Affected Farms: Impact of Claim and Population Dynamics

1. Aerial photography of 1938 and 1941 was used to compile a mosaic of the claimed area and to establish the impact of the claim on the affected farms (Map 4: Aerial Photo of Ba Phogole Land Claim)

2. The impact of the claim on the affected farms differ, and based on the claimants’ delineation of the claimed area and the demarcation of “Zones”, the impacts of the claim on individual 69

affected farms are classified as “severe”, “significant”, “limited” and “insignificant”. If more than 90% of a farm falls within the Zones, it is “severely” affected, if more than 60% of a farm is within the demarcated Zones, it is “significantly” affected, if less than half is within the Zones, the impact is “limited”, and if only a small portion of a farm is in a claimed Zone, the impact is “insignificant”. The impact ratings for the affected farm are presented in the table below.

3. The following maps were used to establish historical occupation and land use of the affected farms:  Map 5: 1: 25 000 Topo Cadastral Map “Krugersdorp” drawn and Printed at the War Office in 1913, representing occupation and land use around 1910  Map 6: 1: 25 000 Topo Cadastral Map “Johannesburg”, drawn and printed at the War Office in 1917, representing occupation and land use around 1910  Map 7: 1: 50 000 Topo Cadastral Map Grasmere 2627 BD, Government Printer 1945, representing occupation and land use around 1940  Map 8: 1: 50 000 Topo Cadastral Map Grasmere 2627 BD, drawn 1956, reprinted Government Printer 1972, representing occupation and land use around 1955  Map 9: 1: 50 000 Topo Cadastral Map 2628 AC, reprinted Government Printer 1944, representing occupation and land use around 1940  Map 10: 1: 50 000 Topo Cadastral Map Alberton 2628 AC, surveyed 1950, drawn 1959, Government Printer 1959, representing occupation and land use around 1955 4. Black occupation of farms are indicated by the following icon on the Topo Cadastral Maps:

The huts per farm on maps representing more or less the periods 1910, 1940 and 1950 and the approximate number of huts per farm for the three periods, also appear in the table below. As it is not sure whether as icon represents a single hut or a homestead, no attempt to determine population numbers was made. The numbers of huts per farm and the total number of huts for the affected farms indicate trends in the black population of the farms in the claimed area.

5. The Topo Cadastral Maps distinguish “dryland cultivation” as a form of land use, and based on proximity to huts, an attempt was made to identify tenants’ fields on the affected farms. This proofed to be very difficult, and although tenant fields are identified, and indicated 70

per farm in the table below, it could at best be described as areas of “possible tenant cultivation” Impact Estimated Number of Possible Tenant Cultivation huts

Parent Farm 1910 1940 1955 1940 1955

Alewynspoort Severe 0 27 48 1 larger area Another area

Bronkhorstfontein Severe 3 25 90 3 small areas 1 small area

Cyferfontein Insignificant 6 10 No tenant cultivation No tenant cultivation

Diepkloof Insignificant 2 2 4 1 kraal47 2 small gardens?

Driefontein Severe 0 3 9 1 small area No tenant cultivation

Eikenhof Severe 0 37 100 3 small areas; 2 kraals No tenant cultivation

Elandsfontein Significant 7 25 45 ? ?

Hartsenbergfontein Significant 2 23 57 1 small area 1 small area

Kromvlei Severe 1 5 15 No tenant cultivation 2 small areas

Liefde en Vrede Limited 6 25 10 1 small area Another small area

Misgund Severe 2 40 27 2 small areas; 2 kraals No tenant cultivation

Muldersrus Part of Bronkhorstfontein

Olifantsvlei 316 IQ Significant 10 10 15 1 kraal No tenant cultivation

Olifantsvlei 327 IQ Significant 0 13 30 No tenant cultivation No tenant cultivation

Ormonde Limited 0 0 0 No tenant cultivation No tenant cultivation

Palmietfontein Insignificant 12 33 44 2 small areas 1 small area

Petrusvlei Severe 0 0 0 No tenant cultivation No tenant cultivation

Rietvlei Significant 0 31 47 2 small areas No tenant cultivation

Roodepoort Significant 2 3 10 No tenant cultivation 1 small area

Tok Significant 0 ? 4 ? ?

Vierfontein Limited 0 ? ? ? ?

Waterval Insignificant 21 24 52 No tenant cultivation No tenant cultivation

Zwartkopjes Significant 26 55 32 1 small area, 2 kraals No tenant cultivation

47 The only map that shows kraals attached to huts is the 1: 50 000 Topo Cadastral Map Alberton 2628 AC, surveyed 1939 and drawn in 1945.

6. The claim severely and significantly affects 15 farms; the effect on three farms is limited, and four farms are insignificantly affected.

7. On the maps reflecting the 1910 population, there are around 100 huts48 on the affected farms; on the maps reflecting the 1940 population there are 380 huts; and on the maps reflecting the 1955 population there are more than 650 huts. This indicates that from 1910, when, according to the maps showing the 1910 population nine of the affected farms had no black families occupying the farms, to 1955, the black population of the affected farms increased more than fivefold.

8. Between 1902 and 1910 the claimed area was only sparsely populated by black families On the maps reflecting the 1910 population, 41 of the 100 huts appear on farms insignificantly affected by the claim, and a further 6 huts are on farms the impact would be classified as limited, and all would probably be outside the claimed area. Only 53 huts appear on the 15 severely and significantly affected farms, and 26 of the huts counted on these farms are on Zwartkopjes, while on seven of these farms there appear no huts.

9. The increase in the black population of the affected farms between 1910 and 1940, and then again between 1940 and 1955 would be due to the further subdivisions of the farms, the proliferation of smallholdings as well as black families’ need for accommodation closer to urban centers. The fivefold increase in the affected farms’ population between 1910 and 1955 occurred despite legislations passed during this period to control farm labour as well as peri-urban squatting.

10. The families living on the affected farms between 1910 and 1955 (and probably also later) were tenants on white owned properties, while some who paid rent for accommodation were, defined as squatters The maps provide evidence that some families enjoyed, in addition to residential rights, also grazing and cultivation rights49. These rights though, were enjoyed by a privileged few, and additional evidence suggests that tenants enjoying cultivation or tenancy rights were either:

48 For ease of reference huts are circled in red. 49 Tenant cultivation and kraals are indicated with black squares 72

 Labour tenants who enjoyed both cultivation and grazing rights, or labour tenants enjoying either grazing or cultivation rights, while labour tenants on many properties on the affected farms rendered services to owners only for residential rights;,  Fulltime employees enjoying beneficial occupation, including grazing or cultivation rights or both grazing and cultivation rights.

11. To clearly grasp tenants’ occupation and rights on the affected farms, a historical view of tenant occupation of the farms Misgund, Eikenhof and Zwartkopjes, based on aerial photography and the maps, is presented to conclude the discussion.

7.3 Misgund

7.3.1 Ownership and Subdivision

1. The farm Misgund 322 IQ was transferred in 1859 from Government to Martha Maria Lindeque, who subdivided the farm.

2. Portion 1 was transferred to Andries du Preez in 1865, and between 1893 and 1895 Christiaan Ludolf Neethling had acquired the Remaining Extent of Portion 1 and Portion 42 and consolidated it as Eikenhof 323 IQ. Portion 1 was further subdivided into Portion 15 that was sold to Walter George Compton in 1895, and after several transfers it was developed into Comptonville.

3. Portion 2 was transferred in 1873 from M M Lindeque to Andries Johannes Stephanus du Preez who subdivided Portion 2 into Portion 3 and the Remaining Extent of Portion 2. In 1895 the Remaining Extent and Portion 3 was sold to the Misgund Estate and Gold Mining Company Ltd who sold the Remaining Extent in 1904 to Reginald Vaile, and Portion 3 in 1895 to Appollo Black Reef gold Mining Co Ltd. In 1944 these properties were transferred to the City Council of Johannesburg

4. Portion 4 was transferred in 1873 from M M Lindeque to Andries Johannes Stephanus du Preez who sold it in 1897 to Walter George Compton. In 1920 C F Stallard bought it from Lewis & Marks and in 1945 the Remaining Extent was transferred to the City Council of Johannesburg 73

5. Portion 5 ( a portion of Portion 2) was subdivided into the Remaining Extent that was transferred to the Devland Investment Company Pty Ltd in 1972, and Portions 6, 7,8, 9, 10, 11, 12, 13, 14, 16, 17 (Arhadale) 18, 19, 21, 22, 23, 36, 37, 38, 39, 40, 43, 44, 45, 46, 47, 48, 49, 50, 51, 62 and 66. These Portions were subdivided by A E Rivas and Portions 6 to 50 were sold to individuals between 1894 and 1898, while Portions 51, 62 and 66 were sold between 1902 and 1911.

6. Portions 24, 25, 26, 27, and 28 of the farm were all transferred between 1864 and 1869 from the original owner of Misgund, Martha Maria Lindeque, to various owners.

Misgund Subdivisions 1895

7.3.2 Misgund 1910

Misgund 1910

1. In 1910 white families were spread across Misgund with homesteads concentrated on the south bank of the Klip River and the northern boundary area of the farm. The fact that there are only two huts on the farm, indicates that only a few black families were living on Misgund between 1900 and 1910. The reason why only one or two tenant families whose identity would never be known, were living on Misgund by 1910, would probably remain unknown, but blacks in the Klip River concentration camp’s resistance to repatriation to the farms they occupied before the war could not be ruled out as a possible explanation why Ba Phogole tenants who had been on Misgund by 1895, had not settled on Misgund by 1910. It is possible that the Ba Phogole who lived on Misgund before the war did not immediately return to Misgund, but went to Johannesburg instead, as many black refugees preferred, before some returned to Misgund.

7.3.3 Misgund Aerial Photo 1938

Misgund 1938

1. Besides a small portion of the north western corner of the farm, Misgund falls entirely within the claimed area and would be severely impacted by the claim.

7.3.4 Misgund 1940

1. The map shows extensive cultivation along the Klip River, and a significant increase in the black population of the farm between 1910 and 1940. Homesteads are spread south of the Klip River, along the northern bank of the river and the central area north of the river (red circles). The black squares indicate possible tenant cultivation, while the homestead close 76

to the eastern farm boundary north of the river with a kraal and cultivation close to the homestead could indicate a tenant with cultivation and grazing rights.

Misgund1940

2. Although it is possible that one or two areas tenants cultivated were not identified on the map, the following could be accepted regarding land rights tenants enjoyed by 1940 on Misgund:  Only a small percentage of tenants exercised cultivation rights, and even less exercised grazing rights at the time.  The areas cultivated were extremely small, and the total area under tenant cultivation at the time would have been less than 5% of the farm.

 The tenants exercising grazing and cultivation rights at the time could have been labour tenants who rendered services for the right to cultivate or keep cattle, or wage employees, as confirmed by the oral evidence provided by Loekie Stefaans, that the father of one of the current or former employees kept a few head of cattle and sheep (6.4).

7.3.5 Misgund 1955

1. By 1955 there were no longer any homesteads on the northern bank of the Klip River, and there are also no signs of any tenant cultivation.

Misgund 1955

2. The concentration of huts south east of the river could be farm worker accommodation and the single huts on the south eastern boundary are tenants on small holdings, and compared to the distribution of huts in 1940, there was a significant decrease in the black population of Misgund. The reason is explained in Section 4.2.3: the number of families on Mr Lombard’s farm (that included portions of Misgund and Eikenhof) had been reduced from 147 to 49 as “a result of police activity”

3. By this time, it would seem wage labour had replaced labour tenants rendering services for grazing and cultivation rights on Misgund.

7.4 Eikenhof

7.4.1 Ownership and Subdivision

1. The farm Eikenhof 323 IQ is a consolidation of the Remaining Extent of Portion 2 and Portion 7 of Olifantsvlei 327 IQ, and the Remaining Extent of Portion 1 and Portion 42 of the Farm Misgund 322 IQ, and was transferred in 1904 from Certificate of Consolidated Title to Christiaan Ludolph Neethling. The farm was then subdivided into the Remaining Extent and Portions 1, 2, 3 and 4. Portion 1 was transferred from C L Neethling to Harry Curtis in 1904. C L Neethling also sold Portions 3 and 4 in 1905 to H Jackson and H Ruthven, and the Remaining Extent was transferred from the Estate of the Late C L Neethling to Harry Curtis in 1910. Portion 2 was subdivided by Deed of Partition Transfer into Portions 5 to 13 and the Remaining Extent by the Neethling family in 1905, and in 1946 these Portions were further subdivide by Deed of Partition Transfer into Portions 17 to 27 and the Remaining Extent. These portions were also subdivided and eventually Eikenhof 323 IQ was subdivided into more or less 80 portions

7.4.2 Eikenhof 1910

1. The histories of Eikenhof and Misgund are very similar, with the majority of white families on Eikenhof concentrated on the south bank of the Klip River, while the absence of any huts on the farm indicates that no black families were living on Eikenhof around 1910.

Eikenhof 1910

7.4.3 Eikenhof Aerial Photo 1938

1. Eikenhof falls entirely within the claimed area and would be severely impacted by the claim.

Eikenhof 1938

7.4.4 Eikenhof 1940

1. The map shows a significant increase in the black population of the farm between 1910 and 1940 from no huts to 37 huts. Huts are spread mainly along the northern bank of the Klip River, while a couple of huts close to small cultivated areas and two kraals adjacent to huts

in the central area of Eikenhof, could indicate possible tenant cultivation and grazing rights.

Eikenhof-1940

2. Similar to Misgund, in 1940 only a small percentage of Eikenhof tenants cultivated land, and all cultivated small fields, and, like Misgund, the total area under tenant cultivation in 1940 would have been less than 5% of the farm.

7.4.5 Eikenhof 1955

1. Between 1940 and 1955 the black population of Eikenhof showed a sharp increase, the huts almost tripled from 37 (1940 maps) to more than a hundred (1955 map). There are however no signs of any tenant cultivation

Eikenhof 1955

2. Extensive cultivation south of the Klip River are shown, and by 1955 Eikenhof tenants would have been employees earning a wage, while some could have been tenants paying rent for accommodation.

7.5 Zwartkopjes

7.5.1 Ownership and Subdivision

1. The farm Zwartkopjes 143 IR was transferred from Government Grant to G van der Schyff and J G Meyer in 1853. The farm was divided into portions and from 1905 the Vierfontein 83

Syndicate Ltd acquired portions of Portions 1, the Remaining Extent of Portion 2, Portion 3 (portion of Portion 1), Portions 5 (portion of Portion 3), Portion 7, and Portions 9 to 19 that were consolidated into Portion 21, while the Rand Water Board acquired Portions 4, 6 and 24.

7.5.2 Zwartkopjes 1910

Zwartkopjes 1910

1. In contrast to Misgund and Eikenhof, Zwartkopjes had a significant black population, represented by 26 huts, by 1910. Most huts are clustered together in the north-eastern corner of the farm while other huts are distributed in smaller clusters or individual huts, across the farm.

7.5.3 Zwartkopjes 1941

1. Although portions of Zwartkopjes are outside the demarcated zones, the larger part of the farm is in Zone 4, and Zwartkopjes is significantly affected by the claim.

Zwartkopjes 1941

7.5.4 Zwartkopjes 1940

1. By 1940 the Zwartkopjes population had increased significantly as shown by 55 huts appearing on the map, and the cluster of huts in the northern corner of the farm referred to as “lokasie”/location, suggests some form of formal housing, most probably for employees 85

of the then Rand Water Board. The fact that there is no cultivation in the vicinity would support such an interpretation, because the rest of the farm is extensively cultivated. There is some evidence of tenant cultivation and two kraals next to huts suggest that some tenants had grazing rights.

Zwartkopjes 1940

7.5.5 Zwartkopjes 1955

Zwartkopjes 1950

1. By 1950 tenant homesteads had decreased significantly from 55 to 32 huts, and only the huts at the “location” is still there. There are also no indications of any tenant farming. By 1976 the “location” had been removed.

Zwartkopjes 1976

8 ASSESSMENT AND CONCLUSION

8.1 Introduction

1. According to the Restitution of Land Rights Act, No. 22 of 1994 as Amended, a ‘right in land’ means any right in land whether registered or unregistered, and may include the interest of a labour tenant and sharecropper, a customary law interest, the interest of a beneficiary under a trust arrangement and beneficial occupation for a continuous period of 10 years prior to dispossession; and, a person, his direct descendants, or a community or part of a community are entitled to the restitution of land rights if dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices.

2. To establish the merits of the claim of the Ba Kwena Ba Mare a Phogole both registered rights and unregistered rights need to be assessed.

8.2 Assessment: Statements

8.2.1 Pre-Difaqane Occupation (Origins)

1. The identification of areas and historical land marks by Tswana designations and names in the Report: Phogole Land (Tite) Zonal and Historical Land Marks Updated Report and by elderly claimants confirm a historical relationship between the claimed area and Tswana/Sotho speaking people, including the Ba Kwena Ba Mare a Phogole. Based on the Ba Kwena Ba Mare a Phogole genealogy compiled by Breutz (3.4.1) the first positive association between the claimed area and the Ba Mare a Phogole would be around the late 1500s and early 1600s when Tite settled somewhere along the Klip River they named “Tite”. Although it is not known how long they dwelled in the area, because around 1650 the Ba Mare a Phogole royal lineage had moved to the vicinity of the Losberg around Fochville at a place called “Kokosi”, the last Ba Mare a Phogole capital before the Difaqane, the pre- difaqane Phogole domain (3.4.2) would have included the areas identified as Kgotlong, Tsorogwane, Motlhatlhafung, Manong and Toko. Genealogies reflect the history of the royal lineages, and the fact that the Phogole capital was at Kokosi

would not exclude Ba Phogole occupation of the larger domain including the Klip River/Klipriviersberg area between 1600 and 1800.

2. But, according to Huffman research in the Klipriversberg area, the area was not exclusively occupied by Ba Kwena Ba Mare a Phogole only as indicated by the fact that a Ba Rolong homestead is located in the Klipriviersberg inside a Ba Fokeng community, while Ba Fokeng pottery has been found in BaKwena settlements in the Suikerbosrand.

8.2.2 Difaqane

1. The fact that Ba Kwena Ba Mare a Phogole occupied the Klip River/Klipriviersberg area at times between 1600 and 1800, could not confirm the view Dr Phatlane advanced in support of the Phogole claim, that Ba Mare a Phogole “uninterrupted settlement at Tsorogwane” could be traced back to the 14th century. According to the archaeologist, the available archeological evidence would not confirm Ba Kwena Ba Mare a Phogole uninterrupted occupation of the area from 1600 to modern times, even though the stone walled sites in the Rand Water Nature Centre area are typical of early Sotho-Tswana settlements (3.1). This would not only ignore the extensive archaeological research and evidence in the Klipriviersberg and greater Witwatersrand and Johannesburg area, but also the impact of the Difaqane. Dr Phatlane called the “suggestion that Bakwena Ba Mare a Phogole left Tsorogwane and thereby ceased to live in and around the area as a result of Mzilikazi in the first half of the nineteenth century, thus further suggesting that the land was open for white settlement”, a misrepresentation of “traditional historians” of the Difaqane and its aftermath, because it “cannot stand honest scrutiny” (5.4.1). This however is in itself a “misrepresentation”. The views of the following scholars on the fate of Tswana chiefdoms following the Difaqane (3.2) could hardly be the misrepresentations of “traditional historians”:  Maylam50, that the Difaqane bought suffering severe devastation and dislocation to the Kwena;  Huffman, that Sotho-Tswana control, and probably occupation, came to an end in Greater Johannesburg in 1823 when Mzilikazi conquered the area; and

50 Dr Phatlane’s main source on the history of the Batswana 90

 Lye and Murray, that, although most Tswana chiefdoms survived the Difaqane, they permanently lost their heartland, first to the Ndebele and then to the Boers, who annexed it before the Tswana could return.

2. While Dr Phatlane admitted that “Mzilikazi’s march to the north” had a “devastating impact on the Tswana in general and the Bakwena Ba Mare a Phogole in particular” his verdict that the “view that this entire group of Batswana were scattered all over the place including the North-West, up to Madikwe region by the Mzilikazi wars is devoid of any truth, particularly if it seeks to suggest that the Bakwena as a tribe thereby ceased to stay around the southern part of Johannesburg” (5.4.1) cannot remain unchallenged, particularly in as much as it relates to the Bakwena Ba Mare a Phogole. According to Breutz the Ba Mare a Phogole ceased to exist as a chiefdom as the Rakwana, Raabe, Maloka and Mogatla clans were driven apart during the Difaqane (3.4.3). This is confirmed by Mr Barney Ngakane’s explanation for the need for the revival of the Ba Phogole in the early 1950s, that because of the “invasions of Mzilikazi and also this young fellow … who was a member of our tribe, Sebetwane who went up across Zambezi to … Barotseland. Now our tribe dispersed and died out completely and the members were strewn all over the farms (3.4.5).

3. Despite Dr Phatlane’s claim that there is “a wealth of historical evidence to illustrate the point that in spite of Mzilikazi’s interruption of their lives the majority of Bakwena still continued to stay in the Witwatersrand region until the Union Government’s adoption of the Natives Land Act of 1913 and beyond”, he only mentions “historical graves of Bakwena Ba Mare a Phogole within the borders of the tribal land going back as far as 1835, 1923, 1935” as evidence (5.4.3). The dates of the graves should, it is assumed, confirm the continued occupation of the Witwatersrand from before the Difaqane until after the passing of the 1913 Land Act. Although graves of 1923 and 1935 could have been correctly identified, the 1835 date would be sheer conjecture. The oral evidence collected by Vorster ( before 1969 from Mogagabe informants) provide some indication of the whereabouts of the Phogole clans during and after the Difaqane (3.4.5) :  The Ba Maloka clan under Mogagabe sought refuge under Moshoeshoe at Thaba Bosiu, that could be supported by the fact that Pule had to be brought from Basutoland to take up the chieftaincy;

 The Mogatla clan roamed around in the vicinity of the Phogole domain, that could be supported by the family history of the Ngakane family ; while  The Rakwana and Raab/le clans became dispersed.

8.2.3 Conquest and Recovery

1. The fortunes of the Ba Phogole in the period following the Difaqane and the expulsion of the Ndebele by the Boers is indeed “shrouded in mystery”. Historians that could be classified as “revisionist” though identified the main trends of Tswana recovery. Although the Voortrekkers claimed the land the Ndebele controlled, Tswana groups, including chiefdoms that had regrouped, found little difficulty finding space for restoration, as the Boers were too few to immediately occupy all the vacated Ndebele lands. Most, including the surviving members of chiefdoms that had ceased to exist, found their way back to the general area of their old homes, albeit as subjects of the Boers (3.3).

2. The earliest information on the restoration of the Ba Phogole available51, dates back to the 1890s. The fact that some were by then living on the farm Misgund, others on farms around Vereeniging, and some in Basutoland, confirms that the Ba Mare a Phogole did not regroup after the Difaqane, as many other Tswana chiefdoms did. They remained dispersed and the restoration of members of Ba Phogole clans, were, it would seem, as members of extended families or lineages; and, it is as extended families or lineages that groups of Ba Kwena Ba Mare a Phogole origin who did not sought refuge with Moshoeshoe, established themselves at different places within the old Phogole domain. Although the evidence of occupation dates back to the 1890s, historically family groups, extended families, lineages or even remnants of Ba Phogole clans could have settled on the claimed land between 1839 and 1890. There is however no evidence to support this.

5. Although it is impossible to establish when Ba Phogole families or lineages came to reclaim “Tite” or Tsorogwane, there can be no doubt that by the 1890s Ba Phogole families were living on Misgund. Vorster’s view that it was members of the Mogatla clan under their “headman” Motshume, could not be correct. Motshume, the real “Wildebees”, was by then,

51 The oral accounts of Thekiso and Mogagabe informants, recorded by Breutz and Vorster respectively, and the interviews with Mr Barney Ngakane. 92

according to Keegan, a “patriarch over a considerable village community” of seven separate households on Vlakplaas near Vereeniging. The only evidence of Ba Phogole members living on Misgund is found in Vorster who alleged that the Misgund kgoro and the Vlakplaas kgoro together bought the farm Klipgat in 1913. There is however no evidence that the 7 other families who bought Klipgat with the Ngakane family living at the time on Vlakplaas, were from Misgund. According to the Title Deed of the farm Klipgat 14 families purchased the farm in 1913. The seven other families included four Thekiso men from the Rakwana clan, one Ngakane from the Mogatla clan and a Malefetse from the Maloka clan (3.4.5), and there is no evidence that any of them lived on Misgund at the time.

8.2.4 Evidence of Ba Phogole Occupation

1. As claimants refused to participate in any in loco inspections, physical evidence of claimants’ occupation of the claimed land could not be collected, and as a result the claimants’ occupation and use of the claimed land and their graves could not be physically established and geo-referenced52.

2. Dr Phatlane made, what seems an almost accidental reference to Mme Martha Motshele who remembered “Eikenhof next to Maphogolestad as their former Post Office”, and although not exactly physical evidence, the reference to “Maphogolestad” confirms Ba Phogole physical presence in the area. Though most of the owners interviewed do not know the name “Maphogolestad”, one of the current owners of Misgund and a 5th generation descendant of Ludolph Neethling who bought portions of Misgund and Olifantsvlei in 1868, mentioned, also almost accidentally, that in the time of his father some of their workers resided at “Mapokstad” and in the mountain to look after his father’s cattle53. Another 5th generation descendant of the same Ludolph Neethling knew the name “Mapogstad”. “Mapokstad” and “Mapogstad” it would seem, are Afrikaans corruptions of “Maphogolestad”, Kokwane Motshele as well as the two current owners associate with the area around the old Eikenhof Post Office. “Maphogolestad”, and for that matter “Mapokstad” or “Mapogstad” could refer to an ancient dwelling of “Phogole”,

52 The physical evidence land owners provided are included in Appendix 6, and can be read. 53“Van ons arbeiders het by Mapokostad en in die berg gebly om die beeste op te pas”.

3. The grave of Marcus Thebe Ngakane, the son of Motshume (Wildebees) and the father of Barney Ngakane, who had been the force behind the acquisition of Klipgat and the restoration of the Ba Phogole Chieftaincy at Uitkyk, is shown on the photo below. Although the exact locality of the cemetery could not be established, it is according to the report of Dr Phatlane “within the borders of the tribal land”, and probably on Misgund.

4. According to Mr Barney Ngakane his father was with him in Orlando when he died. There can therefore be a practical reason why Marcus Ngakane, who had lived all his life on farms away from Misgund, first around Vereeniging as sharecropper until 1920, and then as one of the owners, on Klipgat until his death in the early 1950s, was buried on Misgund:

He died in Johannesburg and he was buried in Johannesburg. But his grave on Misgund could also be a sign of the Ngakane family’s historical and emotional bond and attachment to Misgund. At the time of his death his days as sharecrop tenant on the Vereeniging Estates and Vlakplaas was long gone, his family’s days at Klipgat were numbered and they had not yet settled on Uitkoms. But Marcus Ngakane’s grave on Misgund while his lifelong interests had been at Vlakplaas and Klipgat and were about to move to Uitkyk at the time of his death, is a confirmation of his family’s historical relation with Misgund.

5. Maphogolestad confirm Ba Phogole occupation of a portion of Misgund, and Marcus Ngakane’s grave confirm the Ba Phogole’s historical relation with Misgund/Eikenhof. Although the nature of the occupation and the historical relationship is not known, it cannot be denied, but in the context of the claim occupation and the historical relation with Misgund need to be considered in terms of land ownership and land rights.

8.2.5 Ownership

1. The Dr Phatlane’s claim that the Ba Phogole had indigenous title to the claimed land is implicit in his rhetorical question that it is “not clear how the land known as Tsorogwane came into white hands”, and how white families “came to own the farms and from whom they purchased them because the Batswana had resided on the land long before any white settlement in the Transvaal” (5.4.4). Lye and Murray provide the answer: The Voortrekkers had acquired by right of conquest, a claim to the land the Ndebele controlled as well as control of Mzilikazi’s subjects on the basis that they had freed them from Ndebele rule and therefore had acquired mastery over them as their subjects. This land included the traditional domain of the Ba Phogole that was seized by the Khumalo Ndebele and then annexed by the Voortrekkers. It is against this background that Dr Phatlane’s claim that Ba Phogole’s “collective indigenous ownership” to the land had “succumbed through settler dispossession to registered title deeds”, needs to be assessed if the merits of “indigenous title” is to be considered in the assessment of the claim.

2. The Zuid Afrikaansche Republiek (ZAR) was established in 1853, and although the fledging settler state was slow to take shape and develop structures for the administration of its black population, from its inception, laws passed by the Volksraad effectively rendered the black population subject aliens: They could not obtain ZAR citizenship or own 95

property in the ZAR (Morton 33). Though the ZAR denied blacks private ownership of land, it granted land to chiefdoms. As the ZAR would not allow blacks to acquire land by purchase, blacks who wanted land, bought it through missionaries, who bought the land on their behalf. The Pretoria Convention (1881) recognized the right of the black population to buy land, but it had to be registered in the name of the Secretary for Native Affairs. The right of blacks to own land in the Transvaal in their own name was recognised only in 1905 by a court decision in what became known as the Tsewu case. This case tested the old ZAR principle that blacks could not have individual tenure of land in the Transvaal, and the Supreme Court verdict that the “resolution of the old ZAR National Assembly” was no longer lawful and that blacks could indeed have private property, recognized the right of blacks to buy land outside the locations and reserves set aside for black occupation54. It introduced a short -lived period of black land ownership in the Transvaal, and between 1905 and the passing of the Natives Trust and Land Act in 1936, individuals and syndicates took advantage of the opportunity to buy land.

3. There is however no evidence that the ZAR granted any of the claimed farms to the Ba Kwena Ba Mare a Phogole, or that the Ba Phogole bought any farm within the claimed area. Claims such as the claims of Mme. Dineo Ngakane-Setshedi who was born in the early 1940 and evicted in 1968, that “I want my parents' land back”, or Mme Anna Mochane Raditlhalo who was born on the 14th August 1931 and “grew in a farm owned by her father” where they “used to plough the fields and kept a herd of cattle”, claim ownership of the land, and are without any substance. The Ba Kwena Ba Mare a Phogole or any family or individual who associate themselves with the Ba Phogole never owned any land within the claimed area.

4. White ownership of the 23 parent farms that are affected by the Ba Mare a Phogole claim is confirmed by the Title Deed histories of the affected farms. The Title Deeds of seven of the affected farms were registered before 1860; the Title Deeds of seven other were registered between 1860 and 1869; the Title Deed of one farm was registered in 1870; three were registered between 1895 and 1899; the Title Deed of one farm was registered between 1900 and 1910, and two farms were registered after 1913. All the farms registered after

54 Changuion L & Steenkamp B, 2012. Disputed Land: The historical development of the South African Land Issue, 1652 – 2011. Protea, Pretoria. 96

1870 however, are subdivisions or consolidations of farms registered between 1853 and 1869.

8.2.6 Rights

1. The Ba Phogole, Dr Phatlane claimed, had “unlimited communal rights” to the land at Tsorogwane, and although they have lost indigenous title to the land from 1840 when “ownership of Tsorogwane was transferred to whites”, he maintained that “existing oral evidence suggests that even though they had lost indigenous ownership of the land, Bakwena Ba Mare a Phogole continued to exercise the right to occupy the land, to raise crops and graze their livestock” (5.4.4). The notion of common Ba Phogole access to land and resources Dr Phatlane advocated is also:  Stated by the chairperson of the Ba Kwena Ba Mare a Phogole Committee, declaring under oath, that prior to their forced removal between 1969 and 1980, Ba Phogole households that were spread all over Kgotlong, Tsorogwane Valley, Motlhatlhafung, Manong and Toko each had its own individual cropping field while their cattle grazed communally.  Implied in the Committee’s updated zonal and land marks report, claiming that when the great river Tite (Klip River) was flooded, livestock had to be moved to Kgotlong or Toko to dry land.  Expressed by individuals. Mr Moses Molenga who was born in 1931 claimed he herded his father’s cattle, but when limits were imposed on cattle numbers, they were “reduced to no more than labour tenants of the white farmers”, and Mme Martha Ngakane- Motshele (just before she turned a 100 years) who remembered that they had sheep, goats and cattle, but when they were dispossessed of their land with no livestock or crops to sustain them, they became labour tenants in the land of their forefathers.

2. Remnants of Ba Phogole clans who could have settled at Tsorogwane after the Difaqane and before Boer occupation, of which there is no evidence, would have enjoyed freedom of access to land and the use of resources. But as the Boers were occupying farms in the Gatsrand district, that included the Vereeniging and the Klip River areas, from as early as 1839, their occupation of the area would have become increasingly subject to Boer occupation and interests (4.1.1). By the early 1860s all the farms affected by the claim had been transferred to “burghers”, and 10 years later most of the farms had been subdivided

into multiple portions. This increased the number of farms and farmers. Access to the affected farms’ resources, became subject to title (ownership) and servitudes (4.1.1), and everybody, owners of the land and all others alike, had to respect farm boundaries and the servitudes that regulated access to common resources such as water and rights of way.

3. Common access to land Ba Phogole families could have enjoyed on the affected farms therefore would have ceased around the mid-1860s. As they did not own the land, the Ba Phogole families’ access to the claimed land would, from early on, have been as rent paying tenants (tenants who paid for rights of residence, grazing and cultivation), sharecrop tenants (tenants who farmed on the half with the owner), labour tenants (tenants who rendered services for residential, grazing and cultivation rights) or employees of individual land owners. Tenants’ rights though were limited, and subject to agreements between individual land owners and the tenants on their farms or properties.

4. Though the source of the “existing oral evidence” that the Bakwena Ba Mare a Phogole exercised rights to raise crops and graze livestock Dr Phatlane referred to, is not indicated, it could only be applicable to the period between 1839 and the 1860s. The same would apply to the claim in the zonal and land mark report that cattle had to be moved from Tite to dry land at Kgotlong or Toko. The declaration by the chairperson of the Ba Kwena Ba Mare a Phogole Committee that prior to their forced removal between 1969 and 1980 each Ba Phogole household at Kgotlong, Tsorogwane Valley, Motlhatlhafung, Manong and Toko had its own individual cropping field with communal grazing would imply common access to the claimed land until the late 1960s, which, if not sheer ignorance, would be a fabrication. Mr Molenga who claimed he herded his father’s cattle, was born in 1931, and if he herded his father’s cattle already at the age of 5 years, his father would have been a tenant on one of the affected farms. The same would apply to Mme Martha Ngakane- Motshele who was born before 1913 and who remembered the sheep, goats, cattle and crops they had.

5. By 1910 the claimed area was sparsely populated by black families. One or two families were settled on Misgund, while no tenants were living on Eikenhof. Between 1910 and 1940 the black population of the clamed area increased more than threefold, and between 1940 and 1955 to more or less fivefold the 1910 population. (7.2). Blacks were drawn by

the increased need for labour and the need for accommodation. By the 1930s the traditional system of labour tenancy had already succumbed to the labour needs of the ever increasing subdivision of the claimed land into farms, smaller farms and small holdings. By 1940, a small percentage of tenants (that could be either labour tenants or wage tenants) cultivated an almost insignificantly small percentage of land on the claimed farms, and an even smaller percentage used the farms as grazing (7.2). By 1955 wage labour had largely replaced labour tenancy. By then the rights labour tenants enjoyed on the claimed farms in lieu of their services, were limited to residential rights, and no longer included access to grazing and fields (4.2.3).

8.2.7 Family Names and Numbers

1. According to the chairperson of the Ba Kwena Ba Mare a Phogole Committee, the Bakwena Ba Mare a Phogole “community consisted of numerous households spread all over areas known to them as Kgotlong, Tsorongwane Valley, Motlhatlhafung, Manong and Toko (5.2.2). Mr Moses Molenga claimed that when the Ba Phogole were forcibly removed in the early 1950s, more than 300 families were scattered all over the Reef (5.3.2).

2. The population of the affected farms increased from the 1930s to the early 1950s and although black families were distributed across the affected farms, the large majority were concentrated on Misgund and Eikenhof (7.1 to 7.4). According to the Director of Native Labour’s census in 1948, 295 black families occupied the farms Misgund, Eikenhof and Olifantsvlei 327 IQ, of which at least 160 lived on Misgund and Eikenhof (4.2.3). The census (or survey) results list the name of each Squatter or Owner, his “District of Origin” and the “Number of years in Johannesburg”, and although it is referred to as a census of squatters, all families living on these farms were enumerated, and classified as squatters. The only Ba Phogole family name among the 295 families that were enumerated is that of “Amos Raditlhalo” who was, according to the census, employed by Mr Mosterd at Jacksons Drift (4.2.3). Current and former land owners are, furthermore not familiar with any of the following Ba Phogole family names: Mokgethi, Molenga, Raditlhalo, Ngakane Mogotsi, Ramela, and Mogagabe.

3. Ba Phogole occupation of Misgund and some of the other farms is not denied. The 1948 squatter census as well as the fact that land owners are not familiar with any of the Ba 99

Phogole family names though, challenges the perception that the claimed area was populated by numerous Ba Mare a Phogole households spread all over Kgotlong, Tsorongwane Valley, Motlhatlhafung, Manong and Toko. There is no evidence to support such a claim nor the claim that 300 Ba Phogole families were removed from Misgund in the early 1950s. If “numerous Ba Phogole households” had inhabited the claimed farms, Ba Mare a Phogole would have left a legacy with land owners, whose properties the numerous Ba Phogole families would have occupied, and the black families they employed, particularly if “numerous Ba Phogole households” had been “forcefully removed from Kgotlong, Tsorongwane Valley, Motlhatlhafung, Manong and Toko due to apartheid and its indiscriminate laws associated therewith”, as the chairman of the committee declared. (5.2.2)

8.2.8 Forced Removal and Compensation

1. The removal of Ba Phogole families from some of the farms within the claimed area is not questioned. Forced removals and evictions from the affected farms did occur and were recorded (4.2.3). Removal from Misgund and Zwartkopjes respectively, is, furthermore, confirmed by comparing the distribution of huts appearing on the topo cadastral maps representing 1940 and 1955 (7.3.4 and 7.3.5) and 1955 and 1970 (7.5.5) that shows a decline in the number of huts on Misgund between 1940 and 1955, and Zwartkopjes between 1955 and 1970.

2. As the claimants’ representatives refused to participate in the investigation of the claim, the Ba Phogole community’s forced removal has to be assessed on the basis of the statements available (5.3), which complicated the assessment.

3. The following statements were available:

 The chairperson of the committee’s declaration that the Ba Phogole were moved between 1969 and 1980 due to apartheid laws (5.2.2)

 Grandma Ngakane-Motshele, who, it was reported, has been living in Jabavu, Soweto since the final forced removal of the Bakwena-ba-Mare-a- Phogole in the 1960s (5.3.3).

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 Mr Moses Molenga, who, it was reported, was forcibly removed in the early 50s, with more than 300 families (5.3.2)

 Mr Daniel Raditlhalo, who, it was reported, was one of hundreds of Bakwena Ba Mare a Phogole forcefully removed in the 1950s from Motlhatlhafung village near Naturena, south of Johannesburg (5.3.4).

 Mme. Dineo Ngakane-Setshedi, whose family home, it was reported, was raided in 1968 by the police and the family relocated near Eldorado Park (5.3.5).

 Mme Anna Mochane Raditlhalo, whose family it was reported, were forcefully removed by officials of the then Peri-Urban to their current residence in Diepkloof house number 7517, Zone 3” (5.3.6).

4. The removal of these individuals and their families is not questioned; it is interpreted and assessed in terms of the information available on removal in the area, and the legislation in terms of which removal and evictions occurred.

5. Evidence confirm “mass” removal from Misgund and Eikenhof in the late 1940s in terms of Act No 25 of 1945, the Natives (Urban Areas) Consolidation Act passed to control the influx and settlement of black people in urban areas, and, Section 1 of the Natives Land Act of 1913, that required Governor General’s approval for the sale or lease of land outside the Scheduled Areas to blacks. Rent paying tenants who paid rent for accommodation were regarded as squatters, illegally occupying the properties and were evicted. Although more than a 100 squatters and their families were removed, according to the records only one Ba Phogole family, the family of Amos Raditlhalo, could have been amongst the evicted families (4.2.3).

6. In the early 1950s two additional pieces of legislation was added to the body of legislation that could be applied to remove people from land they occupied: The Prevention of Illegal Squatting Act, No. 52 of 1951 to prevent squatting particularly around urban areas; and the Natives Resettlement Act, No. 19 of 1954 to provide for the resettlement of blacks from undesired urban settlements to planned residential areas. And, evidence that the Inspector of Private Locations had “trapped” and removed 25 illegal squatter families in 1958 from the Eikenhof area, confirms removal from the affected farms after the passing of these acts (4.2.3). 101

7. Amendments to the 1936 Land Act made provision for the abolition of labour tenancy: by 1970 new labour tenant contracts had been prohibited, and in August 1980 labour tenancy was outlawed throughout South Africa. Although no archival evidence of removals from the affected farms after 1970 could be located, labour tenants who rendered services for accommodation, and who had legally occupied farms in the claimed area, could have been removed once labour tenancy became illegal.

8. According to claimants’ statements the removal of the Ba Phogole occurred over a long period, from the early 1950s to 1980. The Ba Phogole families claiming forced removal between the early 1950s and the late 1960s would have been either rent paying tenants who paid land owners for accommodation, or labour tenants declared “surplus labour” in terms of the officially determined labour needs of the farms they occupied. Those moved from 1970 onwards would have been “squatters” paying rent for accommodation and labour tenants, the difference being that by then labour tenancy as form of farm labour had been outlawed, and all labour tenants, and not only surplus tenants, would have illegally occupied the affected farms.

9. The long period of the alleged removal as well as the fact that some claim removal in the early 1950s, and others in the 1960s, suggests that the alleged dispossession of the Ba Phogole could not have occurred as a mass forced removal, and if Ba Phogole families were part of a mass removal such as the removal of the 100 tenant families from Misgund and Eikenhof in the late 1940s, Ba Phogole families would have been a small insignificant minority. The alleged removal of 300 Ba Phogole families in the early 1950s from Misgund is ridiculed by the combined number of huts appearing on the topo cadastral maps for Misgund and Eikenhof for 1940 and 1950 of 77 and 127 respectively.

10. Ba Phogole families would have been relocated as individual families, sometimes along with other tenant families from the properties of different owners and for different reasons. And it is in this regard that the statement of Mme Anna Mochane Raditlhalo that her family were forcefully removed by officials of the then Peri-Urban to their current residence in Diepkloof house number 7517, Zone 3, needs consideration.

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11. Act No 25 of 1945, the Natives (Urban Areas) Consolidation Act, passed to control the influx and settlement of black people in urban areas also transferred responsibilities to provide housing to local authorities. When local authorities proofed to be unable to clear squatter areas, the Natives Resettlement Act, No. 19 of 1954 was passed to provide for the resettlement of blacks from undesired urban settlements to planned residential areas. In 1948 the Director of Native Labour for Johannesburg confirmed that squatting around Jackson’s Drift was part of the larger “squatting problem on the boundaries of Johannesburg” (4.2.3). When the Raditlhalo family were moved from Motlhatlhafung in 1960 they could be, in terms of the official social categorizations of the times, only squatters who paid rent, or surplus labour tenants who rendered services, for accommodation, (even though it is claimed that the family were removed from their father’s farm). Their removal from Motlhatlhafung to Diepkloof house number 7517, Zone 3, could have been part of either the city’s or the state’s solution of the squatting problem on Johannesburg’s fringes.

12. This of course raises the issue of compensation. If the Raditlhalo family of Mme Anna Mochane Raditlhalo who, it would seem, enjoyed only residential rights on Motlhatlhafung, were moved from Motlhatlhafung to Diepkloof house number 7517, Zone 3, it could be argued that house number 7517, Zone 3 in Diepkloof replaced the loss or dispossession of the residential rights the family enjoyed on Motlhatlhafung, and that they therefore had received just and equitable compensation.

13. And, if the other Ba Phogole families that claim forced removal were not just dumped, but were also moved to places such as Diepkloof and Soweto the whole complexion of the claim would change. However, to establish the essence of Ba Phogole families’ alleged removal, each family that claims dispossession and removal must be identified, and each family should then explain the circumstances of its removal, and identify the exact locality of their former homes as well as other physical evidence confirming their occupation of the claimed area.

8.3 Conclusion

1. The Ba Kwena Ba Mare a Phogole claim places around the Klip River and Klipriviersberg Mountain they know as Kgotlong, Tsorogwane, Motlhatlhafung, Manong and Toko. These names as well as the indigenous name “Tite”, for the Klip River, and mountains such as “Thabana ya Mantate”, and “Thaba ya Manong”, confirm historical interaction between 103

these places and Sotho-Tswana speaking people, including the Ba Kwena Ba Mare a Phogole, from the late Iron Age until the Difaqane and beyond.

2. The Klip River and Klipriversberg area, however was not exclusively occupied by Ba Kwena Ba Mare a Phogole; other Sotho-Tswana groups also occupied the area. Sotho- Tswana control and occupation of the area furthermore, came to an end around 1823 when Mzilikazi conquered the area, and the Sotho-Tswana chiefdoms including the Ba Kwena Ba Mare a Phogole were driven apart.

3. Following the expulsion of the Ndebele by Potgieter with the help of the Barolong, the Voortrekkers claimed, by right of conquest, the land the Ndebele controlled, as well as control of Mzilikazi’s subjects. The Ba Mare a Phogole did not regroup as other Tswana Chiefdoms, and as the restoration of remnants of Ba Phogole clans were as members of extended families or lineages, extended families or lineages of Ba Kwena Ba Mare a Phogole origin who did not sought refuge with Moshoeshoe, could have settled on the claimed land after 1839, at the same time the first farms in the Klip River area were allocated to Voortrekkers. Between 1853 and 1869 the Title Deeds of the 23 parent farms affected by the Ba Mare a Phogole claim, were registered in the names of white owners. As most of the farms became subdivided into multiple portions increasing the number of farms and farm owners, the freedom of access to land and the use of resources remnants of Ba Phogole clans could have enjoyed after 1839 on Tsorogwane and the other places they claim, became controlled by farm boundaries and servitudes that regulated access and rights of way.

4. As result of these developments Ba Phogole families occupied the claimed land from around the 1860s either as rent paying tenants, sharecrop tenants, labour tenants or employees of individual land owners.

5. From 1910 the tenant population of the claimed farms increased rapidly because farmers needed labour and the stream of blacks seeking urban employment, needed accommodation. By 1940 Ba Phogole families were a small minority of the tenant population of the claimed farms, who were by then either employees, labour tenants rendering four months service in lieu of accommodation or squatters paying rent.

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6. Forced removal in the 1940s and 1950s targeted “squatters” who paid land owners rent for accommodation, although “surplus” labour tenants also faced evictions. Ba Phogole families that were removed in the 1940s or 1950s would have been tenants paying rent to owners for accommodation, or labour tenants declared “surplus” labour, and they would have been moved with other tenants who came to the farms from all over and who had found accommodation on some of the claimed farms.

7. Despite their dispersion and their subsequent status as tenants, the Ba Phogole maintained a unique historical relation with the claimed area, and in particular with Misgund and Eikenhof, evident in the name of the area around the old Eikenhof Post Office as Maphogolestad, and its corruptions “Mapogstad” or “Mapokstad”. They also shared a sense of community, expressed in the emotional bond with their graveyards in the claimed area.

8. Ba Mare a Phogole families though were not removed as a community, but as individual families from the properties of individual land owners. In fact, since the Difaqane the Ba Phogole had not occupied the claimed farms as a community, but as individual families resident as tenants with, and outnumbered by other tenant families, on the properties of different owners

9. According to the Restitution of Land Rights Act, No. 22 of 1994 as Amended, a community or part of a community can claim restitution of land rights. The Ba Kwena Ba Mare a Phogole (ba Tite) community was not dispossessed of ownership of the claimed land or any farm within the claimed area after June 1913, and the claim lodged by the Ba Mare a Phogole community on the land they know as Kgotlong, Tsorogwane, Motlhatlhafung, Manong and Toko should be dismissed. The Ba Phogole never held any registered rights on any portion of this land.

10. As the Ba Phogole did not occupy the claimed land since it was conquered by Mzilikazi and annexed by the Voortrekkers as a community, the unregistered rights individual families had acquired on individual farms do not constitute a customary law interest on either the claimed area or individual properties within the claimed area

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11. From the 1890s to their alleged forced removals from the area in the early 1950s and 1960s, individual Ba Phogole families had acquired unregistered labour tenancy rights as well as rights of beneficial occupation on farms within the claimed area. Dispossession of these rights though is not specifically claimed, but should the merits of these rights individual Ba Phogole families had acquired be assessed, Ba Phogole families who have lost labour tenancy rights or rights of beneficial occupation would have to be identified, the nature of the rights they have lost would have to be established, and the circumstances of their dispossession would have to be investigated

12. It is therefore recommended that:  The claim of the Ba Kwena Ba Mare a Phogole on the areas described as Kgotlong, Tsorogwane, Motlhatlhafung, Manong and Toko, affecting 1 576 farms and small holdings and 17 696 urban properties south of Johannesburg and largely within the City of Johannesburg Metropolitan Municipality and the Sedibeng District Municipality, should be dismissed.  Claims on the basis of customary law interests could be rejected because the Ba Kwena Ba Mare a Phogole did not occupy the claimed area as a community since the expulsion of the Ndebele, and did not acquire rights amounting to a customary law interest as individual families living as tenants on individual land owners’ properties.  The dispossession of individual families’ labour tenancy and beneficial occupation rights should be recognized and investigated.  The historical relation and emotional bond of the Ba Phogole with the area should be recognized, places of particular historical importance identified and the possibility of acquisition under the land redistribution programme investigated.

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MAP 1: PARENT FARMS, CLAIMED AREA

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MAP 2: FARMS, CLAIMED AREA

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MAP 3: ERVEN, CLAIMED AREA

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MAP 4: AERIAL PHOTO OF BA PHOGOLE LAND CLAIM

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MAP 5: 1: 25 000 TOPO CADASTRAL MAP “KRUGERSDORP” DRAWN AND PRINTED AT THE WAR OFFICE IN 1913

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MAP 6: 1: 25 000 TOPO CADASTRAL MAP “JOHANNESBURG”, DRAWN AND PRINTED AT THE WAR OFFICE IN 1917

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MAP 7: 1: 50 000 TOPO CADASTRAL MAP GRASMERE 2627 BD, GOVERNMENT PRINTER 1945

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MAP 8: 1: 50 000 TOPO CADASTRAL MAP GRASMERE 2627 BD, DRAWN 1956, REPRINTED GOVERNMENT PRINTER 1972

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MAP 9: 1: 50 000 TOPO CADASTRAL MAP 2628 AC, REPRINTED GOVERNMENT PRINTER 1944

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MAP 10: 1: 50 000 TOPO CADASTRAL MAP ALBERTON 2628 AC, SURVEYED 1950, DRAWN 1959, GOVERNMENT PRINTER 1959

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APPENDIX 1: PARENT FARMS IN CLAIMED ZONE

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APPENDIX 2: ERVEN IN CLAIMED AREA

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APPENDIX 3: ARCHAEOLOGIST REPORT

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APPENDIX 4: SEME LETTER

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APPENDIX 5: TITLE DEED HISTORIES

Will be provided on request

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APPENDIX 6: LAND OWNERS REPORT

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