Farmers and other property owners have no reason to believe that the proposed Unlawful Entry on Premises Bill will threaten their safety, says the department of justice and constitutional development. The new trespassing laws caused an outcry in the farming community after it was first tabled in August this year.
Several agricultural organisations have flagged possible loopholes that, according to them, could see intruders get off scot-free or lead to life-threatening scenarios. This, amid fears of land invasion.
Departmental spokesperson Steve Mahlangu, however, tells Food For Mzansi there is no cause for concern.
“It is simply not the purpose of the bill to regulate unlawful occupation of land. The purpose of the bill is to regulate and criminalise unlawful entry on premises. The bill aims to criminalise unlawful entry on premises and repeal and replace the Trespass Act,” he explains.
Clause 7 of the bill states that the owner of the property has a duty to request an intruder or intruders, unlawfully on their premises, to leave immediately. If they leave the premises upon request, they cannot be charged for contravention of the bill.
Agri SA, however, insists that such intruders have already broken the law by merely entering private property. Accordingly, they should be arrested and charged.
ALSO READ: Trespassing bill: Major concern for farmer safety
Unlawful entry, unlawful occupation
Meanwhile, farmers have also red-flagged the bill’s clause 3 and its sub-clauses.
Free State Agriculture chief executive Gernie Botha earlier told Food For Mzansi that there were discrepancies between sub-clauses 1 and 2.
Sub-clause 1 states that “every person who unlawfully enters a premises commits the offence of unlawful entry” while sub-clause 2 states that “a person found on or in a premises who is not a lawful occupier, or employee of a lawful occupier, and who does not have the expressed or implied permission by a lawful occupier, is presumed to have unlawfully entered the premises.”
According to Botha this leaves room for interpretation and even creates a possible defense for trespassers.
Mahlangu, however, points out that there was a distinct difference between unlawful entry and unlawful occupation.
When it comes to unlawful occupation, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 (“PIE”), provides for the “prohibition of unlawful eviction and to provide for procedures for the eviction of unlawful occupiers.”
Mahlangu says “the point at which the unlawful entry becomes or turns into unlawful occupation will be determined by, or turn on, the interpretation of the word ‘occupation’ in PIE, and the interpretation by the courts of the meaning of that word.”
However, clause 8 of the bill does propose that in instances of unlawful entry, the police may enforce its power.
“If intruders already erected any form of housing on the premises and already occupy the erected housing, the authorised member or members [of the police] must arrest them for unlawful entry on a premises,” Mahlangu says.
Agbiz worried about unlawful occupation
Government published the bill for public comment on 12 August 2022.
In its draft submission to the department, Agbiz says the protection of property rights is not only a constitutionally protected right, but critical to economic growth, investor confidence and, ultimately, food security in South Africa.
According to Annelize Crosby, head of legal intelligence at Agbiz, landowners are increasingly encountering problems with the unlawful occupation of land and buildings. To further complicate matters, processes for eviction are long and expensive
“The problem of illegal occupation has only grown worse since the start of the Covid-19 pandemic. Illegal structures are cropping up everywhere and the situation has become difficult to manage for municipalities and private landowners alike,” Crosby says.
She says the bill seems to address some of the shortcomings in current law enforcement against unlawful occupation. It clearly states that intruders can be arrested even if they have already erected structures on the property and are occupying such structures, Crosby remarks.
“What is concerning though, is the defenses provided that unlawful occupiers can raise against a charge of unlawful entry.
“These are broadly formulated and include the reasonable belief that they had title to or an interest in the premises that entitled them to enter the premises.”
Also, Crosby points out, the fact that the police need authorisation to act in terms of this bill, is worrying. “Agbiz is of the view that all members of the police should be able to enforce the provisions of the bill.”
In its submission to the portfolio committee on justice and correctional services, Agbiz says it welcomed any follow-up discussions on the matter in an effort to resolve some of the challenges outlined in their comments.
Agbiz has also requested a meeting with the portfolio committee during public hearings.
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