Some slightly good news for victims of land invasions
A new Bill empowers police and landowners to remove trespassers
For quite some time in South Africa, property rights have been under threat. But while the occasional threat of EWC has reared its head from time to time, the biggest threat has been from removing defences against land invasions.
After all, that was the strategy ZANU-PF used to dispossess farmers in Zimbabwe. As their electoral majority was on the wane in 2000, they held a referendum on the amendment of the constitution to allow for expropriation, which was defeated. Their workaround was the Rural Land Occupiers (Protection from Eviction) Act, which removed landowners’ legal rights to self-defence, and defence of property, paving the way for a massive, decentralised campaign of lawless evictions by various armed groups attached to the ruling party. [1]
And so there has been a fair amount of trepidation around the new Unlawful Entering of Premises Bill,[2] which replaces the 1959 Trespass Act. After all, it explicitly repudiates the 1959 Act as “a piece of colonial/apartheid era legislation as it was originally designed to combat trespass, publications and conduct engendering hostility between certain population groups. The Trespass Act has therefore lost its relevance in our constitutional democracy.”
This is daft way to introduce an otherwise apolitical piece of legislation. The 1959 Trespass Act is a simple piece of legislation, one page in length, which simply prohibits entering a premises without permission from the owner or one of their employees, and imposes a fine or prison sentence for transgression of these conditions. It also imposes a small fine or a two year imprisonment.[3]
However, the new bill does basically the same thing, just in some more detail. What it adds to the equation is that it legally compels police to arrest trespassers and remove any structures they erect on private or public land.
From what I’ve gathered speaking to legal experts, this appears to be necessary, as absurd as it sounds. Police have a tendency to become confused about the applicability of laws passed before 1994, and apparently are hesitant to enforce the Trespass Act, deferring instead to court orders, which are long, expensive, and of uncertain outcome.
This has been an even greater problem in the past few months, since the right of land owners to remove squatters or land invaders has been removed.
The common-law right to counter-spoliation (the right to reclaim one’s property if it is taken unlawfully) has been overruled in a 2021 case by the SAHRC, which argued that the City of Cape Town would have to file for a court order to remove each individual illegal structure in a mass land invasion, and could not rely on counter-spoliation to remove land invaders.
This transparently malicious ruling comes very close to the abolition of property rights in practice, since even the removal of an illegal structure, habited or not, has been declared unlawful. In fact, the judges ruled that “possession has been completed” once a structure has been erected, effectively legalising theft.
Strategies since adopted by land invaders have included mounting a prefabricated shack onto a flat bed truck or bakkie, and then ramming it through perimeter fencing and planting it on the land to make themselves unremovable.
The judges in the 2021 case likened the image of a shack-dweller being removed from his shack naked was reminiscent of the apartheid regime, disregarding the fact the man in question stripped down beforehand with the conscious intent of exhibiting his self-imposed indignity to the waiting press. Such conspiratorial behaviour should not have been tolerated.
To call the parties to this ruling malicious does not even begin to cover the depth of their perfidy. While evictions of this sort occur across the country, it is only in the case of the Western Cape, the only province run mostly by racial minorities, that this sort of antinomian activism is pursued.
The recourse to police and courts under the PIE Act[4] is restricted by the capacity for the justice department to process eviction notices. If the court fails to file the notice within 14 days, the procedure must be begun again from scratch. In many cases, the requirement under this Act that the court must take the availability of accommodation into account[5] has often been interpreted to mean that people (even the homeless) cannot be moved on without providing alternative accommodation for them.
What this new Bill does however, is remove the requirement for a court order in the case of trespassers (stubborn tenants are still protected by the PIE Act), and simply places the onus on the police to remove trespassers forthwith. It clarifies the distinction between stubborn tenants and trespassers.
However, this does not entirely fix the problem, even if it improves matters somewhat.
The police are known to deliberately ignore complaints and refuse to enforce the law against land invasions,[6] even with a court order,[7] or else perform administrative paperwork incompetently, sometimes taking months to respond[8] to what are often violent and threatening occupants. Sometimes this is malice, sometimes, incompetence, and sometimes apathy, but the effect is the same – police can seldom be trusted to do their job.
There is one law that empowers citizens to defend their property in the absence of the police, and that is the 1977 Criminal Procedures Act, from which Section 42 is worth quoting in part:[9]
“(3) The owner, lawful occupier or person in charge of property on or in respect of which any person is found committing any offence, and any person authorized thereto by such owner, occupier or person in charge, may without warrant arrest the person so found.”
Of course, this runs one into the same problem as the Trespass Act, in that some police, often illiterate or at least ignorant of law, may regard this as assault and arrest the owner, but judges will not uphold such an arrest unless the owner uses unwarranted force.
So how does this stand altogether?
Combining the terms of the new Bill and the CP Act, the procedure to follow in the case of a trespasser is the following – one must issue a verbal or visible written warning making the person aware they are trespassing and ask them to leave. If they refuse, one must inform the police “without delay”.
Then, according to the CP Act, one is empowered to perform a citizen’s arrest to remove the person if the police are slow to arrive, or are entitled to reasonable self-defence if they prove threatening.
The police must then remove and arrest the trespasser and confiscate or remove any structures or building materials they have left at the site.
This is a far cry from the confusion we have endured so far. While the actions of left-wing activists and profiteers from shack farming may continue to undermine the rule of law may continue, their work will be much harder if this Bill is passed.
[1] Zimbabwe. 2001. Rural Land Occupiers (Protection from Eviction) Act, 2001. Available at: https://www.ecolex.org/details/legislation/rural-land-occupiers-protection-from-eviction-act-2001-chapter-2026-lex-faoc060479/
[2] Minister of Justice. 2022. Unlawful Entering of Premises Bill. Available at: https://www.justice.gov.za/legislation/invitations/20220812-InviteToComment-UnlawfulEnteringOnPremisesBill.pdf
[3] Trespass Act [No. 6 of 1959]. Available at: https://www.gov.za/sites/default/files/gcis_document/201505/act-6-1959.pdf
The penalty on the Act is £25 or three months, but is now R2000 or two years, according to the Criminal Procedure At of 1977, Available at: http://www.saflii.org/za/legis/consol_act/cpa1977188/index.html#s2
[4] Prevention of Illegal Eviction from and Unlawful Occupation of Land Act [No. 19 of 1998]. Available at: https://www.gov.za/sites/default/files/gcis_document/201409/a19-98.pdf
[5] S6(3)(c)
[6] Ego Gardens PTY LTD and Others v Minister of Police an (19186/2018) [2018] ZAGPPHC 158 (30 March 2018). Available at: http://www.saflii.org/za/cases/ZAGPPHC/2018/158.pdf
[7] Broughton, T. 2022. Judge slams police for refusing to carry out court orders. 19 July. Available at: https://www.groundup.org.za/article/judge-slams-police-for-repeatedly-refusing-to-carry-out-court-orders/
[8] Maphoto and Others v Minister of Police and Another (A3109/17) [2018] ZAGPJHC 442 (20 June 2018). Available at: http://www.saflii.org/za/cases/ZAGPJHC/2018/442.html
[9] Criminal Procedure Act [No. 51 of 1977].Available at: https://www.justice.gov.za/legislation/acts/1977-051.pdf