16 September 2022
Director-General: Justice and Constitutional Development,
Attention: Ms A Botha.
By e-mail: AlBotha@justice.gov.za
Re: Written comments on proposed Unlawful Entry on Premises Bill, [B – 2022]
- In respect of Clause 1 (Definitions):
- A “lawful occupier” as defined in this clause is any person who physically occupies a premises, only excluding an employee of the so-called “lawful occupier”.
- This implies that a person who unlawfully entered a premises is inter alia regarded as a lawful occupier as long as he/she physically occupies the premises thereafter and he/she is not an employee of the person who is occupying the premises after unlawfully entering it. The present wording would defeat the most important legal purpose which the Bill purportedly has, namely prohibition of unlawful entry or presence upon land or in buildings as presently provided for in the Trespass Act, No. 6 of 1959.
- It is unrealistic and impractical that the employee of a lawful occupier is excluded from the definition of “lawful occupier”.
Bona fide employees of a real lawful occupier as understood
in the South African common law are precisely the type of persons whom one would expect to obtain permission from the real lawful occupier to be on his/her premises to perform their duties as employees. This exclusion of employees of a lawful occupier as possible lawful occupiers is also contradicted in clause 3(2).
- “premises” as defined in this clause excludes ships, “vessels”, trains, railway carriages, vehicles and aircrafts while they are “in operation”. The implication thereof is that unlawful entry on/in such objects is not prohibited as long as they are in use. This clearly contradicts the apparent legal purpose of the Bill.
- The provision of “implied” permission for entry on premises or part thereof in this clause dealing with the definition of “unlawful entry” and the development of the concept by means of the presumption created in clause 3(5) would lead to the dangerous situation that unlawful intruders may enter premises up to the front door of any dwelling on the premises under protection of the envisaged presumption of lawful access mentioned in clause 3(5) which arises as soon as a means is apparently provided and used for access to the premises.
- In South Africa with its shocking number of housebreakings, robberies, farm attacks, theft, malicious damage to property, rapes and murders, this would expose lawful occupiers of premises to crime even more than at the moment. This is exacerbated by the provision under the same definition which clearly indicates that a person who enters on any premises under this protection only commits the offence of unlawful entry when he/she fails to leave the premises after permission to enter has been withdrawn.
- In respect of Clause 3(2)
- This clause contradicts Clause 3(1).
- In terms of Clause 3(1) read with the definition of “unlawful entry” in Clause 1, the offence of unlawful entry is committed when a person does what is described in Clause 3(2). The creation of a presumption of the offence having been committed when a person does what is described in Clause 3(2) is therefore contradictory.
- In respect of Clause 3(3)
- This provision apparently provides for the scenario where the lawful occupier or a so-called undefined “authorized person” is present on the premises which he/she occupies and is aware of an intruder who has entered the premises.
- The procedural scheme, proposed in Clauses 7 and 8 ,of a legal duty on the lawful occupier or authorized person to first inform the intruder to leave a premises, a duty to then call a so-called “authorized member of the South African Police Service” if the intruder ignores the information to leave or threatens the lawful occupier or “authorized person”, and the duty of that member to then deal with the intruder are removed from the reality of the dynamics of crime. It would strip a lawful occupier of his/her current right to arrest an intruder for illegal trespassing without a warrant of arrest and any other private person of his/her right to legally assist him/her in that arrest in terms of Section 42 of the Criminal Procedure Act, No. 51 of 1977.
- It would also unreasonably complicate the common law right to private defence (better known as “self-defence”): The proposed steps of “informing” the intruder to leave, and if that does not cause the intruder to leave, to call the so-called “designated” police official, would become new requirements for lawful private defence. This is totally unreasonable and a danger to the victim(s) of unlawful trespass.
- In respect of Clause 3(4)
- The defence created in this clause for somebody charged with the proposed offence of unlawful entry introduces a subjective test to be applied in the adjudication of the charge.
- This would be open to fairly easy abuse by creative criminal minds.
- The possibility of abuse is strengthened by the provision of Clause 9(c) that a person may not be convicted of an offence under the Bill if they(sic) reasonably believed that they(sic) had title to or an interest in the premises that entitled them (sic) (to?) enter the premises.
- The structure of the Bill
- The adage “Don’t repair what isn’t broken” seems applicable in respect of the Bill.
- The Trespass Act, No. 6 of 1959, amended in 1997with a very simple amendment to provide for the protection of the rights of persons in terms of the Extension of Security of Tenure Act, No. 62 of 1997, is a very clearly worded, easily interpreted, effective Act to protect the rights of lawful occupiers of land or buildings against unlawful trespass. It is good legislation by any objective legal measure that can possibly further simply be amended to include the prohibition of trespassing in or on some things besides land, as ostensibly envisaged with the definition of “premises” in Clause 1 of the Bill.
- The Unlawful Entry on Premises Bill is an unnecessarily lengthy, badly worded proposed piece of legislation with potentially devastating effects to the rights of lawful occupiers of land and buildings.
- It is strongly recommended that the Bill be discarded and that the existing Trespass Act, No. 6 of 1959, be improved by a simple amendment as pointed out above.
- It is further strongly recommended that the Criminal Procedure Act, No. 51 of 1977 be amended by insertion of a provision therein that any person may protect his/her property or the property of any other person by application of such force as is reasonably necessary to render any other person who is found in the act of intentionally damaging or attempting to damage the property of the first-mentioned person unable to damage the said property, including lethal force as envisaged in Section 49 (1)(c) of the said Criminal Procedure Act.
- It is further strongly recommended that the said Criminal Procedure Act be amended by insertion of a provision therein that, for the application of deadly force as contemplated in Section 49 (1)(c) of that Act it is legally presumed, until proven otherwise, that any person who breaks into any dwelling at any time poses a direct threat to the lives of all the lawful occupiers present in that dwelling for the duration of his/her presence in that dwelling.
JJS Prinsloo SC.
Leader, Afrikaner Self-determination Party.