Durban - The proposed Unlawful Entry on Premises Bill is open for public comment until today, September 16.
The proposed bill was recently drafted by the Department of Justice and Constitutional Development (DOJCD).
The current Trespassing Act dates back to 1959. It prohibits the entry or presence on private land and the entry or presence in private buildings. Those found guilty pay a fine or could face imprisonment.
In a statement, Minister Ronald Lamola said the current act was outdated.
"It is a piece of colonial legislation and is not fit for purpose. It was passed even before South Africa was a republic, when South Africa was still a union. It only has four sections, and it is limited to cases of trespassing on land and buildings only."
Lamola said the proposed bill extended the remedies to combat trespassing beyond land and buildings. He said it provided a wider definition of premises.
This included a ship or vessel, train, railway carriage, vehicle or aircraft, a trailer, caravan, motor home or a portable structure designed as a residence.
"The proposed bill thus gives the owner or lawful occupier more protection than they had before. The draft bill makes it clear that a person who enters premises without permission or a lawful reason is guilty of an offence. Wanting to eat someone’s food or steal someone’s property is clearly not a lawful reason."
Lamola said if the intruder does not leave the premises, the police must assist with removing the person.
"If a person is found guilty of an offence in terms of the bill, they can face a fine or imprisonment for a period of up to two years. Crimes under the common law and other statutes, for example, theft, housebreaking and robbery, remain the same offences as they always were.
"The bill does not change those offences or make it easier for persons to commit crimes. Furthermore, the law dealing with matters like self-defence remains as it always was."
Highlights from the proposed bill include:
- Anyone who unlawfully enters premises commits the offence of unlawful entry.
- Anyone who gains entry to an enclosed property without permission from the property owner or lawful occupier is guilty of an offence.
- Anyone caught on or in premises without the consent of the owner is presumed to be trespassing.
- Property owners need to put up clear signage indicating entry onto the premises is not allowed.
- Property owners must give an oral or written warning to any persons entering their property unlawfully.
- If there is an intruder on the property, the owner must request the intruder or intruders leave the property immediately.
- If the intruders do not leave the premises, the property owner must contact the police.
Umesh Jivan, a law expert, said the current bill was over 60 years old.
"The proposed bill, if implemented, will be an update. It simply prevents someone from entering your property unlawfully. It prevents people from coming onto your property and squatting. You can tell them to leave, and if they don't, then the police can be summoned to do the same thing. If they don't comply, they can be charged and prosecuted," said Jivan.
Some ratepayer associations and civic organisations have mixed reactions to the bill.
Annie Singh, the chairperson of the Asherville Ratepayers Association (ARA), said some residents had expressed their support for the replacement of the Trespass Act.
"The Trespass Act was initially intended to control trespassing, and it was a means to control the movement of certain groups of the population. The removal of this legislation from the statute books must be applauded."
She said while some have viewed the bill as a positive means of dealing with intruders, others were sceptical about whether the bill, if it was enacted in its current form, would serve the purpose for which it had been intended.
"The main criticisms that have been levelled against the bill, include the warning that needs to be given to intruders. The bill provides that this notice may be given orally or in writing, or it may be posted at a point of access to the premises and made clearly visible. This raises possible legal issues, including the question of subjectivity as to what is a clearly visible notice.
"It also raises questions about the language barrier, which is a common stumbling block in South Africa. Would the notice suffice if the intruder cannot understand the language in which it is written or if the lawful occupier cannot communicate effectively in the language of the intruder? Further, what would comprise an adequate verbal warning in such instances?"
Singh added: "The bill has also been criticised on the basis that only authorised individuals of the South African Police Services may apprehend alleged intruders. It has not acknowledged private security companies to effect such apprehensions. This is a concern. With the increase in crime, more residents and companies are dependent on private security companies.
"The association will lodge the above as concerns received. These concerns have a direct bearing on the rights of residents."
Asad Gaffar, the chairperson of the Westville Ratepayers Association, said property owners need to protect themselves.
"If we don't put up notices on our properties, this gives criminals a reason to enter. This prejudices citizens. Secondly, if the trespasser creates a reasonable reason, he has the right to enter a property. How ridiculous. The proposed law will open more doors for criminal elements."
Don Perumall, the chairperson of the Tongaat Civic Association, said: "This proposed bill infringes or restricts our right to life because it is a vague outline. We are being told that if someone hops over our fences into our yards, we must tell them to leave, and if they don't, what happens? We call the police and wait?"
Navin Dookran, the chairperson of the Clare Estate Ratepayers Association, said having compared the old bill and the proposed bill, the latter was detailed and empowered law enforcement to remove trespasses from the property.
"Why has it taken the government so long to come up with a proposed bill?"
The police and NPA said they could not comment on the matter at this stage and referred POST to the DOJCD.
Comments on the bill must be submitted to A Botha on or before September 16, 2022. Comments can be sent through mail to the Director-General: Justice and Constitutional Development, Private Bag X 81, Pretoria, 0001 or one email to [email protected] or via fax on 012 406 4632. All comments must be addressed to A Botha.
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