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Onwettige betreding op persele Wetsonwerp- Neem standpunt in en lewer kommentaar voor 16 September 2022
Lees die Afrikanerbond se konsep kommentaar (Voorlopig slegs in Engels)
Kennisgewing vir die indien van kommentaar - Sien die wetsontwerp onder
Die Departement van Justisie en Grondwetlike Ontwikkeling het op 12 Augustus 2022 die Wetsontwerp op Onwettige Betreding op Persele 2022 (‘die Wetsontwerp’) vir openbare kommentaar gepubliseer.
Die wetsontwerp kan by die volgende skakel besigtig word: (of lees onder)
Kommentaar op die wetsontwerp moet ingedien word by Me A Botha, voor of op 16 September 2022. Die kontakbesonderhede is soos volg:
(a) Die Direkteur-Generaal: Justisie en Grondwetlike Ontwikkeling, Privaatsak X 81, Pretoria, 0001. Gemerk vir die aandag van Me A Botha; of
(b) E-pos adres: AlBotha@justice.gov.za; of
(c) Faks nr: 012 406 4632.
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Aanvanklike Kommentaar op die voorstelle in die ONWETTIGE BETREDING OP PERSELE WETSONTWERP (Engels)
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MEMORANDUM FOR AND ON BEHALF OF THE AFRIKANERBOND
ON THE UNLAWFUL ENTRY ON PREMISES BILL PUBLSIHED IN
THE GOVERNMENT GAZETTE OF 12 AUGUST 2002 AND UNDER GOVERNMENT NOTICE 46705 ON P 135
POINTS OF DEPARTURE AND CONSTUTIONAL FRAMEWORK
South Africa is facing unparalleled levels of crime and in particular violent crimes gender-based violence. Most of these crimes (that do not occur in public spaces) occur on private owned property or other rights in property where citizens should be afforded the protection of their privacy to the exclusion of others. The criminalisation of unlawful entry on a premises
(i) should therefore be welcomed in what should be part of a common cause effort to prevent(ii) crime or limit the progression of a crime form the initial unlawful entry onto a premises towards the committing of more serious and violent crimes referred to above. It should, without any doubt, add value to the ability of the South African Police Services
(iii) to apprehend criminals before they commit violent crimes towards citizens of the country and to protect property or lawful rights to property.
Section 7 of the Constitution of the Republic of South Africa (iv) places an onerous and positive duty on the state and all organs of state to respect, protect, promote, and fulfil the rights in the Bill of Rights. We submit that this can only be achieved by means of statutory intervention and the effective enforcement of the statutes that are enacted to achieve the objectives of section 7.
We hold the view that the unlawful entry of a “premises” as defined in the Bill violates or, in many instances, is the precursor to the violation of the following fundamental rights of citizens:
- The protection of the privacy of citizens in section 14;
- The protection of the rights of citizens prevention of arbitrary deprivation of property in both and the horizontal (between citizens) and vertical (state versus citizens) application of section 25(1). Section 25(1) of the Constitution prohibits any law that permits arbitrary deprivation of property and should also be a logical conclusion that the prohibition should also apply to the interpretation of any statute in instances where the object of the statute is not the arbitrary deprivation of property, but an interpretation thereof my amount to the arbitrary deprivation of property.
Within the context of the relevant fundamental rights that are to be respected, protected, promoted, and fulfilled, the protection of the rights of the categories of persons who are defined as “lawful occupiers”(v) should be welcomed.
It is our further submission that the statutory intervention as intended by the Bill, should enhance, and uphold the Supremacy of the Law as one of the Constitutional Values .
(vi)
A resort to self-help or any statutory provision that would permit a resort to self-help pertaining to the entry to or access to a premises (other than uncontrolled public spaces) would be at odds with upholding the Supremacy of the Law. Al disputes pertaining to access to, occupation and use of land should be channeled via our courts as is the already the case with the South Africa’s tenure legislation , that gives effect to section 25(6) of the Constitution and the only means to do so is to deter any resort to self-help.
The envisaged legislation should also operate as a deterrent for land invasions that are causing a huge number of citizens to end up on open pieces of land without access to any basic services and that places a huge amount of pressure on local authorities to reprioritise limited resources at the expense of persons who lawfully and patiently participate in state subsidised housing schemes. The unlawfully entry onto a premises should be criminalised to prevent the invasion of land. The prosecution of intruders (as defined in the Bill) will deter the unlawful entry upon land and therefore any subsequent invasion of land.
SPECIFIC COMMENTARY ON THE WORDING OF THE BILL
We will now respond ad seriatim
to the wording of the respective sections of the Bill
AD PRE-AMBLE
1. That the following additions be made to the pre-amble and that the a substituted preamble read as follows:
“To prohibit the unlawful entry on premises, and to provide for matters connected therewith
“Preamble
WHEREAS the Supremacy of the Constitution of the Republic of South Africa, Act 108 of 1996 (“the Constitution”) and the Rule of Law is a Constitutional Value as enshrined in section 1 (c) and requires that all disputes pertaining to ownership, occupation, use and access to a premises should be resolved via our courts and it is necessary to discourage any resort to self-help.
WHEREAS no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property and ancillary to this right is right of citizens, to be protected from the unlawful entry upon the premises that is lawfully owned or occupied by them or it;
AND WHEREAS every citizen has the right to privacy and that such right is to be exercised within the boundaries and confines of a premises to which access is limited to the exclusive use of the occupier thereof or any person/s who is lawfully authorised by the lawful occupier to be present on the premises.
AND WHEREAS it is desirable that the law should respect, protect, promote and protect these rights
AND WHEREAS the duty that rests on the state to (via the South African Police Services) be able to prevent, combat and investigate crime with legal certainty in circumstances or instances where there is unlawful entry of any premises (other than uncontrolled public spaces)
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows: -”
AD DEFINTION OF “ENCLOSED LAND”
2. The edition of paragraph e) to read as follows:
“e) land that has been surveyed by the Surveyor General of South Africa and for which a copy or certified copy of a title deed can be produced by the owner or person/s in charge of the land”
It is not clear from the rest of the text of the Bill why this definition is necessary. It is our view that such no single definition will be sufficient to encapsulate the cast variety of boundaries that demarcate land and land uses in South Africa. The inclusion of this definition may deprive poor communities (who cannot afford the enclosure of the land to which they hold exclusive or protected rights) from the envisaged protection afforded by the Bill.
AD DEFINITION OF “LAWFUL OCCUPIER”
3. The amendment of b) to read as follows:
“b) a person or persons who lawfully reside on the premises”
The inclusion of the word “lawfully” will align the definition with the objective of section 8(4) of the bill. In this respect, a clear distinction should be drawn between the carrying out of an arrest for an offence and the carrying out of an eviction. An arrest will be carried in respect of intruders referred to in section 8(4) if the erection of any form of housing on the premises, was preceded by the committing of a criminal offence as described in section 3. A lawful eviction will be required as an independent civil remedy in instances where land is unlawfully occupied in accordance with PIE-act.
(viii) The progression of the initial unlawful entry of a premises to the unlawful occupation of land should not constitute a defence to an offence as envisaged in section 3 of the Bill.
4. The amendment of b) to read as follows:
“c) “a person or persons who has the lawful responsibility for and control over-”
AD DEFINITION OF “PREMISES”
5. The addition of iv) to paragraph a)
“iv) land that has been surveyed by the Surveyor General of South Africa and for which a copy or certified copy of a title deed can be produced by the owner or person/s in charge of the land”
AD SECTION 3(4) AND 9(c)
6. This provision allows for a subjective interpretation that is at odds with the supremacy of the law and the very objective of the act. It is also irreconcilable with the envisaged clear definition of a “lawful occupier” in section 1 of the Bill.
The parameters of “unlawful entry” are defined in section 1 and it is difficult to contemplate the nature of any subjective consideration of a title and interest on the side of a transgressor might be that goes beyond what the Bill defines as a “lawful occupier” and “unlawful entry”.
The inclusion of a subjective reasonable belief of the existence of title and interest in the premises that goes beyond the definitions referred to above opens the avenue for a resort to self-help and will cause serious difficulties for the practical enforcement of the law by members of the South African Police Force and the prosecuting authorities. In line with the Constitutional value of the Supremacy of the Constitution of the law, the law should clearly define the parameters of the application of the act. The Bill should also seek to enhance legal certainty instead of creating a void in its practical application.
“Reasonable belief” and any title and interests that should afford a transgressor justification for his/her presence on a premises is defined under the defined in section 1.
“Lawful occupiers” as defined in section 1) derive their status from the fact that they enjoy legal recognition of their lawful and enforceable rights. It is also these rights that afford them the right to complain when an offence as defined in section 3 is committed.
It is therefore not clear why section 3(4) and 9(c) is necessary.
AD SECTION 3(3),4 and 5 and 6
6. These sections and duties they impose places the protection afforded by the Bill outside the means of a vast majority of South Africans who may not be able to afford compliance with these requirements. This will fly in the face of the stated intention of the whole purpose to repeal and replace the Trespass Act. This will render victims of the unlawful entry of their premises without any protection of the Bill, by virtue of the absence of the prerequisite notice that they cannot afford, as the absence of the notice will render the transgressor immune from prosecution due to non-compliance with this requirement.
This requirement is also impracticable on larger properties unless the requirement is limited to existing entrances to the premises. It does not take into consideration that a premises, such as farm or large industrial site may also be unlawfully accessed via others means than an existing and identifiable entrances or points of access.
AD SECTION 3(5
7. This section does not cater for farms and larger premises will be difficult to apply in a practical way. The purpose is clearly to allow the lawful occupier the ability to exercise control over access to the premises and the door of building or premises is not the sole means to control access to a premises.
AD SECTION 7
8. It is not clear whether this section permits unlawful entry and then only renders the presence of the transgressor unlawful when the duty to inform has been complied with.
This section also contradicts the presumption 3(2) and shifts the onus of evidentiary proof that is created by the presumption.
What proof will be required for notification/request or compliance with the duty that is contemplated in this section?
AD SECTION 8
9. This section contradicts 3(1), 3(2) and 10 of the Bill to the extent that an offence, as defined in these sections, is only committed after SAPS has arrived at the premises and called on the intruders to leave the premises or erected housing on the premises. Put differently, the inclusion of section 7, as it stands, will entitle the transgressor to rely on non-compliance with section 7 as defence to a charge in terms of section 3(1),3(2) read together with section 10. This will without any doubt defeat the objectives of the Bill and any delay on the side of the police may have devastating results for the victims of the defined offense.
10. It is not clear why specific resources and dedicated appointments by SAPS should be made prerequisites in the Bill. The SAPS should regulate and apply its resources in accordance with the duties imposed by section 205(3) of the Constitution and treat all offences in the same manner. All police officers should be trained and equipped to prevent and combat crimes.
11. This section may cause delays in law enforcement when there is a temporary vacancy or absence of a designated officer, and it is not clear how this provision will be applied in a rural setting with limited human resources.
12. This section should also be reconciled with the powers to carry out a civil arrest as envisaged in section 42 of the Criminal Procedure Act, Act 61 of 1997 and in instances where SAPS is unable to provide or timeously provide the required protection to victims of the offence as defined in section 3 of the Bill.
CONCLUSION
13. The introduction of the Bill is welcomed. The comments provided herein should be considered as constructive criticism and as the pursuit of piece of legislation that addresses the crime that it seeks to prevent or deter with clarity and certainty. It is also our objective to meaningful contribute towards the addressing the shortcomings of the Bill’s predecessor it now seeks to repeal.
14. It is also with the stated objective and attitude in mind that we gladly offer to make further contributions (if necessary) and provide any further clarity that our comments my warrant to ensure that this piece of legislation becomes part and parcel of our country’s priority to address crime.
For and on behalf of the Afrikanerbond
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(i) As defined in section 1 of the Bill
(ii) Section 205(3) of the Constitution of the Republic of South Africa Act 108 of 1996
(iii) SAPS
(iv) Act 108 of 1996 (hereinafter referred to as “the Constitution”)
(v) Definition in section 1 of the Bill
(vi) Section 1(c) of the Constitution.
(vii) The Extension of Security of Tenure Act, Act 62 of 1997 (“ESTA”) and the Prevention of Illegal Eviction (“the PIE-act) from and Unlawful Occupation of Land Act 19 of 1998. See also the judgment of Agrico Masjienerie (Edms) Bpk v Swiers 2007 JDR 0419 (SCA) at par 29
(viii) 7 supra
Kommentaar: Onwettige betreding Wetsontwerp
