New Unlawful Entering Bill displacing owners form the legal framework
16 September 2022
Sakeliga is warning that the Unlawful Entering on Premises Bill is displacing property owners from the legal framework that is supposed to protect premises from unlawful trespassing. While the statutory offense of unlawful entering is maintained, the Bill is making it virtually impossible for owners who are not at the same time occupying their premises, to act against trespassing and unlawful occupation.
The defects are contained in a Bill that was recently published by the Minister of Justice following a Constitutional Court judgment in 2020, in which Sakeliga contributed to important legal protection against unlawful trespassing.*
In the Bill, the downscaling of the role of owners is contained in the unprecedented exclusive role given by the Bill to a lawful occupier of premises, rather than to the owner and/or lawful occupier, to act against intruders. The definitions of “lawful occupier” and “unoccupied premises”, read with the remedies and competencies in the Bill regarding unlawful entry (paragraphs 3(3), 6(1), 7(1) and 7(2)), apparently prevent the owner of premises who does not exercise physical occupation, from evicting intruders. Assistance is reserved for lawful physical occupiers. In the current political climate it could, for example, create serious problems for farmers who own farms consisting of several pieces of land, some of which may be unoccupied, when intruders enter upon such land or erect structures. The same goes for developers, the owners of industrial premises, etc.
Owners of premises do not always exercise physical occupation on all their premises, and no bill that excludes owners, merely on the grounds of their occupation status, from remedies against intruders is acceptable.
It is not clear whether these defects appear in the Bill intentionally or accidentally, especially because many parts of the Bill contain welcome improvements and clarifications, but at the same time it suffers from vagueness and contradictions.
For instance, the Bill creates harmful directives on the procedure to be followed to remove intruders from premises. Paragraph 7(2) provides for a lawful occupier of a premises, when faced with threat during active unlawful entry, to request assistance from an “authorised member” of the SAPS.
Also, in the event of an intruder refusing to leave the premises, such assistance by an “authorised member” of the SAPS must be requested, who then must remove the intruder. Apart from the undue limitation it places on certain common-law remedies of an owner or lawful occupier to stop the intrusion or to have it stopped, it does not take into account the SAPS’s inability to offer the public ongoing reliable and effective assistance.
In the event of unlawful entry, owners may have to wait for hours or even days for assistance by one of a small number of "authorised" members of the police designated by the national commissioner. Not only will it render the fight against crime more difficult, but it will also create intense and increasing tension between a law-abiding public and an overloaded SAPS.
While paragraph 7(2) of the Bill does have defects, Sakeliga wishes to point out that the Bill does not affect the trite common law principles concerning self-defence. Any person himself or herself is entitled to take proportional action in self-defence to fend off an unlawful attack that has commenced or that is unavoidable, so as to protect legally recognised interests such as life, bodily integrity and, in some instances, property. The Bill does not encroach on these principles and does not regulate self-defence.
Sakeliga will monitor the progress of the Bill and its future versions. Any attempt to water down property rights will be strongly opposed, as in the past.
Click here for Sakeliga’s full comment as submitted.
* Sakeliga emphasises that private property ownership, including the right to prevent unlawful entry, is indispensable for any thriving economy and community. In promoting this, Sakeliga in 2020 participated in legal action in the Constitutional Court to help prevent Julius Malema and the EFF from having declared invalid certain parts of the current Trespass Act (6 of 1959) and the Riotous Assemblies Act (17 of 1956). Such declaration of invalidity, which eventually was fended off, would have given Malema and others free pass to incite their followers to unlawfully occupy land and would have seriously hampered the eviction of intruders. For more information on the role played by Sakeliga, as amicus curiae, in the case, click here.
Issued by Piet le Roux, CEO, Sakeliga, 16 September 2022
