It is of the utmost importance that land owners and persons in control of land should know what they need to do if their properties are invaded or being threatened by possible land invasion. This short article provides a summary of the most important precautions and proposed actions that law abiding citizens can use. Because of complex legislation it is important to also obtain legal advice from a practising lawyer in the applicable field as soon as squatters start moving onto your property.
Individuals have various rights and remedies to protect their property rights. In practice, it often becomes more difficult to claim these rights as an individual. These guidelines are written from the perspective of joint action by individuals within the community; in other words, that property rights can be protected by means of an organised, law abiding community. Practical guidelines are set out below regarding how property can effectively be protected and serve as guidelines that have worked with ample success in the past.
It is easier and more affordable to prevent land invasions than to become involved in drawn-out legal processes. Acting with the relevant urgency will also assist in removing the trespassers within the allowed parameters of the law before a court order is needed by property owners. Very often, a misperception is created by ground level law enforcement officials that a court order is the only way to protect property and to remove trespassers, this is a gross misrepresentation.
The following steps can help you to protect and restore order on your property:
1. Get involved in your local community safety network and structure, whether it is a private neighbourhood watch, farm watch or community policing forum, make sure that you are an active participant.
2. Be vigilant and conscious of what is happening on your property.
3. Patrol the area and request the neighbourhood watch or security firm to be on the lookout for new or irregular structures.
4. If there are indeed workers or invaders living on your property, obtain as much information as possible about them (for example lists of names and ID numbers) so that people who do not belong there can be easily identified.
5. Apply strict access control. Do not allow strangers to use your land as a thoroughfare.
6. It is important to build a good relationship with the local police.
7. If your property is temporarily vacant, arrange alternative supervision by your neighbourhood watch or security firm. Do not tell everyone that you will be away for an unforeseen period.
8. Keeping record and taking pictures of unfamiliar people and vehicles in the area remain important. Report the date, time and place where the people or vehicles were observed. Inform your local neighbourhood watch or security company.
9. Submit complaints in terms of the Trespass Act, 1959 (Act No 6 of 1959) at the SAPS against all illegal trespassers. The police must allow you to open the case, some officials often use the lack of a court order as an excuse not to allow a property owner to open a case. The police have a responsibility to protect both you and your property.
10. Make sure you obtain proof of receipt with the officer’s rank, name, surname and force number when you submit the complaint.
Remember that your safety comes first and you must avoid conflict as far as possible. If you notice a land invasion, you must inform the South African Police Service, neighbourhood watch, community police forum and private security immediately. Communication should preferably be in writing too, to prevent facts being denied later.
Also, contact your neighbours, any existing safety structures as well as AfriForum. It is is advisable to try and obtain a court interdict before the people move in. Lock all gates on the premises and take pictures of the locks. Patrol the area and lock all gates that can be locked.
It is important to understand that eviction can take place with or without a court order. Any trespasser must be arrested, unless he/she has undisturbed occupation (in terms of the Trespass Act). The owner or the person in charge of property must lodge a complaint with the police.
If the trespasser has undisturbed occupation, he/she may not be evicted from housing without a court order. In other words, only when the intruder has been informed of his/her trespassing and a complaint has been lodged with the police (in terms of the Trespass Act), the structure may be demolished and the trespasser arrested by the police.
If no-one is living in the structure, it must be demolished immediately, before being occupied. Call your nearest neighborhood watch or security company for assistance and witnessing. Building materials and content should not be damaged, and an inventory of it must also be kept. It would be wise to hand over the inventory to the police (SAP13). It is essential to take photos and videos of the whole process, to later serve as evidence if a dispute arises.
The police are supposed to investigate any crime. In practice, however, they will often refuse to get involved in land invasions, because of the political nature of the crime. Insist on submitting complaints of trespassing and possibly also complaints of damage to property and violations of the Fencing Act. Complaints of public violence may also be a possibility. Get other people to accompany you to the police station and to be witnesses. Insist on seeing the station commander if the officers are unhelpful. Submit complaints to the Independent Complaints Directorate (ICD) if complaints are not taken or investigated by the police. It is important that you are able to identify the unhelpful officials.
A private person may carry out arrests if a crime is committed in his presence. It is advisable to immediately call the police, neighborhood watch and/or security company and to have them available when action is taken. Once again, it must be done in a responsible manner in a group context. It is important to do this with as little force as possible and to hand over the person to the police as soon as possible. It is advisable to have witnesses present at any arrest. Also refer to the Criminal Procedure Act of 1977 (Act 51 of 1977) for detailed clarity on how a private person may act during such an incident.
If the invaders have already moved in, in other words, if they are enjoying undisturbed occupation, they are still trespassing, which is a crime. In such a case is unwise to carry out arrests yourself, because the invaders will try to make it a case of eviction without a court order. Pressure must be put on the police to follow up on the complaints that have already been submitted. If invaders have already moved in, an eviction order must be obtained from a court as soon as possible. It is easier to get an eviction in circumstances where the invaders have been on the land for less than 6 months.
Property rights are the cornerstone of a stable social, economic and political environment. The increasing threats of land occupation should be taken very seriously. We must develop the ability to protect our own property and the property of other persons and communities. This can be achieved only by acting in a responsible manner as organized communities.
Ian Cameron is head of Community Safety at AfriForum.