Land Claims Court affirms the right of marginalised groups to a fair trial

Lawyers for Human Rights (LHR) is heartened by today’s Land Claims Court ruling in the matter of Paulinah Moleleki v. Far West Dolomitic Water Association  to uphold the right of indigent defendants to be afforded adequate representation and support to ensure a fair trial. Judge Poswa-Lerotholi AJ issued the judgment, which rescinds an eviction order for a family (our clients) who have lived on the same land for years. The now-deceased father had worked on a farm on the land, under the mistaken belief that his employer owned the land. When the family was served with an eviction order, the respondents opted to represent themselves, allegedly without being informed of their right to free legal representation.

Judge Poswa-Lerotholi AJ provided four reasons to justify the invalidation of the eviction order and previous court judgment. Firstly, the Judge found that the Magistrate had not adequately understood the extent of his duty to protect the constitutional rights of the Applicants by explaining the importance of legal representation and its availability without cost. Secondly, the record of the previous trial did not indicate how language and translation were managed to ensure that the Respondents understood the proceedings. The Judge noted that ‘The failure by the Magistrate to note whether the language rights of the respondents were observed….is fatal to the eviction order as it calls into question whether a fair trial was conducted’. Thirdly, the Judge found that there was no evidence that the Respondents had sufficiently understood the legal proceedings and ramifications when they decided to consent to the eviction in the previous trial. If they were not properly informed of the consequences, the consent should not stand. Finally, the Judge held that the eviction order was dealt with under the wrong legislation: PIE instead of ESTA. Due to the employment of the deceased father, the long-term residence of the family, and the agricultural use of the land, the order should have met the requirements of a lawful eviction under ESTA, not PIE.

LHR is proud of today’s legal victory. Today’s judgment shows that--in some cases at least--courts will enforce our progressive legislation and allow justice to prevail, even for the vulnerable.

For further information, please call Carol Mohlala at (079)-239-9826.

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