South Africa may soon have new laws on trespassing on private property, but the issue has stirred up mixed feelings amongst the farmers of Mzansi. While organised agriculture has welcomed the draft Unlawful Entry on Premises Bill’s potential to address many of their safety concerns, they have also pointed out some loopholes and possible unforeseen consequences for farmers.
The department of justice and constitutional development first announced the new bill in August this year, saying that it is designed to replace the 63-year-old and now “unfit for purpose” Trespassing Act.
“The new proposed bill extends the remedies to combat trespassing beyond just land and buildings by providing a much wider definition of ‘premises’,” the department said in a statement shortly after publishing the bill.
“The draft bill makes it clear that a person who enters a premises without permission or a lawful reason is guilty of an offence. If the intruder does not leave the premises, the South African Police Service must assist to remove the person. If a person is found guilty of an offence in terms of the bill, they can face a fine and/or imprisonment for a period of up to two years,” the department said.
It also emphasised that the bill would not impact other laws on theft, housebreaking, robbery, and self-defence but would merely “give the owner or lawful occupier [of property] more protection than they had before”.
Farmer safety in jeopardy
Even though the bill is still in its early stages and in draft version, organised agriculture has raised some red flags that its leadership feels need to be eliminated.
Agri SA is particularly concerned about the bill’s requirement that a landowner approach unlawful trespassers and request them to vacate the premises. This, the organisation believes, could result in direct conflict.
“Considering the high rate of violent crime in South Africa, it is unconscionable to expect a lawful occupier to put themselves in a potentially life-threatening situation,” the organisation remarks.
Agri SA has also flagged what it believes to be a loophole: if an intruder complies with a landowner’s request to leave a property, they cannot be charged for contravention of the bill. “Our view is that the instant that the trespasser enters private property, he has broken the law and should be arrested and charged accordingly.”
Possible defence for criminals
Meanwhile, Free State Agriculture’s interpretations of the bill include a possible loophole and even defence for trespassers to be on private property without permission.
Gernie Botha, CEO of Free State Agriculture tells Food For Mzansi that aspects of the bill’s clause 3 and its subclauses are problematic.
While subclause 1 states that “every person who unlawfully enters a premises commits the offence of unlawful entry”, subclause 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”.
Botha believes this leaves much room for interpretation and even creates a possible defence for trespassers.
If a person reasonably believes that they had title to or an interest in a premises that entitled them to enter the premises, he says, it could be regarded as a defence to the charges of unlawful entry.
“What can be regarded as ‘title to or an interest in the premises’ will be open for interpretation and whilst not properly defined, can create several concerns not only for farming communities but urban communities will also be subjected to this issue,” Botha explains.
Illegal occupation
With illegal occupations of land on the increase, FSA is concerned that the provision of a possible defence can create a significant problem. “It is therefore prudent that cognisance is taken of this provision and the negative impact that can be applicable.”
Uys van der Westhuijzen, chair of Agri SA’s centre of excellence for rural safety, also says that South African farmers face multiple challenges related to land ownership, including the Expropriation Bill which will shortly proceed to the National Assembly for debate.
“Our members are increasingly encountering trespassers on their properties with little support from the police. The effect is that this trespassing frequently escalates to the unlawful occupation of land and buildings, leading to costly and time-consuming eviction proceedings.”
Both Van der Westhuijzen and Botha welcome, in general, a bill that will help address some of these issues.
The bill itself should not be perceived in a negative light only, says Botha. He adds that the clause which provides police with the power to arrest intruders that have already erected any form of housing on the premises and already occupy the erected housing, is an example of a positive provision.
Agri SA, too, views this as an important provision to combat the growing threat of illegal occupation of farmland and the resultant threat to food security that it poses.
To be amended and redrafted
While the bill is a good initiative in many senses, agricultural leaders agree that work still needs to be done to refine it. Both Agri SA and FSA have submitted their comments, which closed on 16 September, and FSA is currently running a campaign to prevent the bill from progressing in its current form.
“As with bills, the content should be properly perused and considered,” says FSA. “There are provisions that have the potential to be interpreted as a possible dilution of property rights. If left as it is, not only the farming community will face challenges, but every community can be impacted.”
The department itself has reassured South Africans. “All comments will be considered and evaluated, and the draft bill will be redrafted, taking these inputs into account.
“Only then will the bill be sent to Cabinet for approval for introduction into Parliament. Once in Parliament, the public will have further opportunities to make input on the bill as it passes through the National Assembly and National Council of Provinces.”
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