Paulinah Moleleki and Others v Far West Dolomitic Water Association and Another

The First Appellant was the widow of Mr Moleleki (deceased), aged 69, and the Second, Third and Fourth Appellants were her children. The deceased was employed by Mr Modibedi who leased property (Portion 72, 73, 115 Farm Wonderfontein, Carletonville) from the First Respondent (Far West Dolomitic Water Association). The deceased died in June 2003. The family continued residing on the property after his death without interference. When Mr Modibedi defaulted on rent and was evicted, the Appellants continued to reside on the property. On 12 June 2015, the First Respondent commenced eviction proceedings under PIE. The unrepresented Appellants attended court on 22 July 2015 but filed no opposing papers. An eviction order was granted allegedly with their consent. The Appellants subsequently applied for rescission of the eviction order, which the Magistrate dismissed. They appealed this dismissal to the Land Claims Court.

• Whether the Appellants' constitutional right to legal representation was adequately explained to them
• Whether there was informed consent to the eviction order
• Whether the eviction proceedings should have been brought under ESTA rather than PIE
• Whether the court complied with its constitutional and statutory duty to consider all relevant circumstances before granting an eviction order
• Whether the language rights of the Appellants were observed during proceedings
• Whether the requirements for rescission of judgment under Rule 49 of the Magistrates Court Rules were met
• Whether the Appellants had a bona fide defence under ESTA

1. The appeal was upheld with costs. 2. The Magistrate's order dismissing the rescission application was set aside. 3. The rescission application was granted. 4. The eviction order of 22 July 2015 was rescinded. 5. The Appellants were granted leave to defend the eviction application. 6. The matter was remitted to the Magistrate to deal with the eviction application in terms of ESTA as directed in the judgment.

1. A judicial officer dealing with unrepresented litigants in eviction proceedings must not merely inform them of the right to legal representation, but must encourage its exercise, inform them of access to legal aid, and grant reasonable time to obtain representation - this duty applies with equal force in both PIE and ESTA proceedings. 2. For consent to an eviction order to be valid and legally binding, it must be informed consent - given freely and voluntarily with full knowledge of the rights being waived. 3. A court has a non-delegable constitutional duty under section 26(1) to consider all relevant circumstances before granting an eviction order, even where parties consent to eviction. 4. Under sections 3(4) and 3(5) of ESTA, persons who have resided continuously and openly on land for one year are presumed to have consent, and those who have done so for three years are deemed to have resided with the knowledge of the owner - these provisions create independent rights of residence that survive the termination of the original basis for occupation. 5. Language rights must be observed in eviction proceedings to ensure a fair hearing. 6. An eviction order obtained in breach of these constitutional and statutory requirements is void ab origine and subject to rescission.

The Court noted approvingly the observation by Judge President Hlophe that court environments are intimidating and language issues complicate matters, emphasizing that courts must be user-friendly to make justice accessible to poor and vulnerable members of communities. The Court also observed that the more intrusive the consequences of an order on the rights of a litigant (such as loss of shelter in eviction cases), the more circumspect the judicial officer should be in protecting the rights of unrepresented litigants. The Court noted that the specific considerations relevant to termination of the Appellants' right of residence under section 8 of ESTA (including the First Appellant's age, length of residence, and absence of alleged breach of duties) could not be fully determined without all relevant factual information, but indicated that the First Appellant appeared to have strong protections under section 8(4) of ESTA given her circumstances.

This case reinforces critical constitutional protections for vulnerable occupiers in eviction proceedings. It emphasizes that judicial officers must go beyond merely informing unrepresented litigants of their right to legal representation - they must actively encourage its exercise, inform them of legal aid, and grant reasonable time to obtain representation. The judgment clarifies that consent to eviction must be informed consent with full knowledge of rights being waived. It confirms that courts cannot abdicate their constitutional duty under section 26(1) to consider all relevant circumstances even where parties consent to eviction. The case also provides important guidance on distinguishing between PIE and ESTA applications, particularly regarding the deeming provisions in sections 3(4) and 3(5) of ESTA that create independent rights of residence after specified periods. It demonstrates the protective approach South African courts must take toward persons rendered vulnerable by past discriminatory laws and practices.