Clarification on the proposed draft Unlawful Entering on Premises Bill

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It has been suggested that if the bill becomes law, you will be prevented from defending yourself or your property if people trespass on your property. This suggestion is incorrect. The law allows you to defend yourself, your family or your property against a current or imminent unlawful attack. The force that you use to repel the attack must be reasonable under the circumstances. The bill does not limit your right to self-defence.

The bill seeks to repeal and replace the provisions of the Trespass Act 8 of 1959. According to the Department of Justice “The Trespass Act has been identified 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. The Bill aims to prohibit unlawful entry on premises, and to provide for matters connected therewith. Among other things, it provides for the offence of unlawful entry and the penalties to be imposed if a person is found to be guilty of the offence; the duty to inform an intruder of unlawful entry; the powers of the police and defences to the offence of unlawful entry”.

The Trespass Act provides that if a person enters or occupies a building or land without the owner’s permission that person shall be guilty of an offence and on conviction shall be liable to a fine and/or imprisonment for a period not exceeding two years.

The bill proposes that the Trespassing Act be changed in the following respects:

1. a person is presumed to have unlawfully entered a premises, if that person is found on or in a premises and that person is not a lawful occupier or employee of a lawful occupier;
   
2. the lawful occupier has a duty to inform the intruder that the intruder is unlawfully on the premises and that the intruder must leave the premises immediately;
   
3. if the intruder refuses to leave the premises, the lawful occupier must request assistance from members of the South African police services who must “without delay go to the premises and remove the intruder.”
   

The third proposal is problematic as the reality is that the police are under-resourced, may not prioritise the complaint and may be slow to respond to a complaint. This is of real concern and may well result in people being forced to resort to their right to defend themselves and their property.

The bill is at the public consultation stage and accordingly all members of the public have until 16 September 2022 to comment on the bill.