The Department of Justice and Constitutional Development (DJCOD) has urged the public to ensure that they source and give accurate information on the provisions of the new draft Unlawful Entry on Premises Bill.

This is after a post on the social media app, TikTok, inadvertently shared incorrect information about the new draft bill. The post has since been deleted.

The post in question misrepresented the draft laws, saying that South Africans had no right to defend themselves when attacked by intruders and could only tell the trespassers to leave and call the South African Police Service (SAPS).

The video also incorrectly stated that criminals could defend against the trespass by simply saying they had an interest in something on the property.

Justice Department responds

The justice department said that the draft bill deals only with the offence of trespassing and makes no changes to other standing South African laws regarding criminality or self-defence.

“All persons are, no doubt, entitled to their views and to freedom of expression, however threats, misinformation, fake news, hyperbolic utterances and insults serve no purpose in a constitutional democracy, nor does it assist with the legislative process.

“It is most concerning that vitriolic, racist and expletive-ridden comments and insults have now been directed at public servants who are seized with this very critical work of drafting legislation and advancing our constitutional principles in all spheres of society,” the department said on Wednesday.

The DJCOD explained that the older Trespassing Act – enacted some 63 years ago – is an “outdated piece of legislation” that is limited and “not fit for purpose”.

“The new proposed Bill extends the remedies to combat trespassing beyond just land and buildings by providing a much wider definition of ‘premises’. The proposed Bill thus gives the owner or lawful occupier more protection than they had before.

“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.

The draft bill also does not change other crimes like theft, housebreaking and robbery with the law of self-defence also remaining intact.

Broadly, the new laws lay out the offence of trespassing as follows:

  • If someone unlawfully gains entry to an enclosed property without permission from the property owner or lawful occupier they are guilty of an offence;
  • Someone caught on or in a premises without the explicit or implied consent of the owner is presumed to be trespassing;
  • Property owners need to give notice – either by putting up clear signage or giving an oral warning to the perpetrator – that indicates that entry is prohibited;
  • Owners or lawful occupiers can call the police to apprehend trespassers;
  • Trespassers can defend against the charge if there is a reasonable belief that they have title or interest on the premises that entitles them to enter the property;
  • It’s presumed that access to the door of the property is not prohibited if you’ve provided the means to access it.

If someone is found guilty of trespassing, they could face a fine, up to two years in prison, or both.

The department has encouraged the public to submit their comments on the draft bill.

“The draft bill was published by the [department] for initial comments. Once the deadline for the receipt of the comments has passed, 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,” the DJCOD said.

Reporting with SA News

Read: New laws to deal with trespassers on private property in South Africa