TRESPASSING, HOME AND LAND INVASIONS

Released - 27 February 2024

WHAT ARE YOUR LEGAL RIGHTS

Constitution of the Republic of South Africa
Section 25 provides that no person may arbitrarily be deprived of their property and no law may permit such deprivation.
Section 205(3) stipulates that the objects of SAPS, amongst others, is to maintain public order and to protect and secure the inhabitants of South Africa and their property. The Police therefore have a duty to act when a citizen’s property is being threatened.

Trespass Act 6 of 1959
Is the primary piece of legislation which seeks to protect property owners and lawful occupiers from unlawful entering and occupation of property. Section 1 of the Act defines the offence of trespassing as unlawfully entering without the permission by any person of a property (either the owner or someone who is lawfully occupying the property). SAPS may immediately arrest the offender and to formally charge and convict them with trespassing. Section 2(2) of the Act grants the court the power to make an order for the summary ejectment of such person from the property or land concerned. Trespassers can be fined R2 000 or be imprisoned for two years.

The Criminal Procedure Act 51 of 1977
Allows for private individuals to effect an arrest without a warrant and Section 42(3) authorises either the owner or the lawful occupier to arrest the person found on the property committing the offence. It is advisable though to immediately call SAPS, neighbourhood watch and/or your security company and to have them available when action is taken.  On a note of caution, as the unlawful arrest or an arrest carried out with excessive force resulting in unreasonable injury to the perpetrator may lead to civil litigation against the arrester. The use of SAPS and/or your security company as arrester is therefore preferable.

Prevention of Illegal Eviction from the Unlawful Occupation of Land Act 19 of 1998 (PIE Act)
The PIE Act is problematic, as “unlawful occupiers” are provided with legislative protection in terms of this Act, and this will require an owner to apply for a court order to formally evict such “unlawful occupiers” from their property. Section 4 deals with administrative process that must be followed when applying for an eviction order and the requirement to give notice of legal proceedings to the “unlawful occupiers”. The owner is therefore burdened with a lengthy and costly legal process to effect an eviction, including the cost of the eviction itself, which is carried out by the Sheriff and the contracting private security company.

PREVENTATIVE MEASURES
It is critical that landowners and persons lawfully occupying the property should know what they need to do if their properties are invaded or being threatened by possible invasion. Where a possible land invasion is threatened, it is advisable to obtain a court interdict before the land invasion (your attorney will need to help you to do so).  
Preventative measures are clearly preferred as they are easier and more affordable. Ideally the property owner should ensure that proper access control measures are in place. This includes walls and fences to make it difficult for intruders to gain access to your property. Signboards which are clearly visible should be erected around the perimeter of your property and which highlight that it is private property, trespassing is not permitted, and that trespassers will be prosecuted. All gates should be locked, and pictures taken of the locks.

 

The following steps can help you to protect and restore order to your property:

  1. Get involved in your local community safety network.
  2. Be vigilant and conscious of what is happening on your property.
  3. Patrol the area and request your neighbourhood watch or security firm to be on the lookout for new or irregular structures.
  4. If there are employees or invaders living on your property, obtain as much information as possible about them (names and ID numbers) so that people who do not belong there can be easily identified.
  5. Apply strict access control. Do not allow strangers to use your land as a thoroughfare (unless an existing servitude is registered).
  6. Build a good relationship with your local SAPS.
  7. If your property is temporarily vacant, arrange alternative supervision by your neighbourhood watch or security firm, but don’t tell everyone that you will be away.
  8. Keep records and take pictures of unfamiliar people and vehicles in the area. Report the date, time and place to your neighbourhood watch and security company.
  9. Submit complaints in terms of the Trespass Act at SAPS against all illegal trespassers. Property owners must give an oral or written warning to any persons entering their property unlawfully. SAPS or your security company should immediately be contacted and must assist in removing the person/s. SAPS must allow you to open the case. Where relevant, also lay a complaint of damage to property and violations of the Fencing Act 31 of 1963. If relevant, also lay a complaint of public violence. Get other people to accompany you to SAPS and to be witnesses. Make sure you obtain proof of receipt with the officer’s rank, name, surname, and force number when you submit the complaint. Insist on seeing the station commander if the officer/s are unhelpful. Submit complaints to the SAPS Independent Complaints Directorate if complaints are not taken or investigated by SAPS (it is important that you are able to identify the unhelpful officials).    
  10. Eviction can take place without a court order. Any trespasser must be arrested unless he/she is in undisturbed occupation of the property.
  11. If the trespasser has undisturbed occupation (living in a structure) he/she may not be evicted from housing without a court order. Whilst such undisturbed occupier/s are trespassing, it is unwise to try carry out an arrest yourself, as the invaders will make it a case of eviction without a court order. Pressure must be put on SAPS to follow up on the complaints that have already been submitted. An eviction order in terms of PIE must be obtained from a court as soon as possible. Get an attorney to assist you.      
  12. If no-one is living in the structure, it must be demolished immediately, before being occupied. Call your neighbourhood watch/security company for assistance and witnessing. Building materials should not be damaged and an inventory must be taken. Preferably hand over the inventory to SAPS. It is essential to take photos and videos of the whole process to later serve as evidence if a dispute arises.
  13. If your land has been invaded as invaders need access to agricultural land, you should also approach the Department of Agriculture Land Reform and Rural Development (DALRRD) for assistance. If your land has been invaded due to housing needs, you should also approach the local municipality or if necessary, the provincial or national Department of Human Settlements for assistance.
  14. Contact AfriForum Community Safety for possible assistance as they have undertaken to support farmers in terms of security.             

STEPS TO FOLLOW WHEN TRAGEDY STRIKES

Remember that your safety comes first. Inform SAPS, your neighbourhood watch, your security company immediately. All trespassers must be arrested, and a case opened with SAPS. Communication should be in writing too, to prevent facts being denied later. Where “undisturbed occupation” has been achieved, get an attorney to assist you.

 

The opinions expressed in this newsletter are my own and do not necessarily represent those of the Committee or of the appointed legal team.

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