The agricultural industry is pushing back against provisions of the new Unlawful Entry on Premises Bill, raising alarms over landowners’ personal safety and the ability to charge a trespasser criminally.

Agri SA, a federation of agricultural organisations, said that it has submitted comments on the Unlawful Entry on Premises Bill that “provides an important mechanism for giving effect to the Constitutional duty that rests on the South African Police Services to prevent, combat, and investigates crimes.”

The group noted that there are important concerns about the bill, namely:

  • The bill requires that a landowner approach unlawful trespassers and request them to vacate the premises – this could, according to Agri SA, put the landowner’s safety at risk given the high level of violent crime in South Africa.
  • The bill has a loophole that if an intruder complies with a landowner’s request to leave a property, they cannot be charged for contravention of the Bill.

Agri SA is calling for such provisions to be reconsidered as it is “unconscionable” to expect a lawful occupier to put themselves in a life-threatening situation. It said that the instant a trespasser enters private property, they have broken the law and should be arrested and charged accordingly.

The Department of Justice and Correctional Services published the first draft of the Unlawful Entering on Premises Bill for public comment on 15 August.

Broadly speaking, 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 on-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.

Following the announcement of the bill, the department urged the public to ensure that the information they received around the bill was accurate – this follows misinformation regarding the bill spreading online.

The department clarified that 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 in removing 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,” added the department.

The proposed laws do not remove or supplant any other criminal laws – so someone entering a property to steal or do harm is subject to those respective criminal laws – and does not remove the rights for landowners to defend themselves or their property.

The defence of “interest” or “title” in the proposed laws has also been widely misinterpreted to mean someone who is interested in something on the property may enter it. In law, these terms refer to legal rights, legal ownership and other factors relating to these.

According to Agri SA, the bill has the potential to address some key problems experienced under the current application of the law and as a result of poor police action in cases of unlawful entering of premises.

“It allows, for example, for the arrest of trespassers even if they have already erected structures on a property and are occupying such structures,” said Agri SA.

This is an important provision to combat the growing threat of illegal occupation of farmland and the resultant threat to food security that it poses, added the group.

“Our members are increasingly encountering trespassers on their properties with little support from the police. The effect is that this trespassing frequently escalates to the unlawful occupation of land and buildings, leading to costly and time-consuming eviction proceedings.”

“If these remaining challenges can be ironed out, this Bill will assist in curbing unlawful entry on farmers’ premises, but we will also need effective policing to enforce this crucial protection,” said Agri SA.

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