‘I was kicked out of my own home…’

Woman ac­cused of tres­pass­ing in ‘her house’; de­faulted on bond pay­ments

Pretoria News - - METRO - ZELDA VEN­TER zelda.ven­[email protected]

FOR years Rachel Zwane lived in a small house in En­nerdale south of Joburg. Liv­ing with her were two daugh­ters and four grand­chil­dren. When she lost her job in 2009, she couldn’t keep up with her bond re­pay­ments and the house was re­pos­sessed and sold from un­der­neath her.

The new owner got an evic­tion or­der and Zwane and her fam­ily found them­selves on the street.

In des­per­a­tion, her grand­son climbed through a win­dow, and let them back into the house which to this day she claims as hers by dint of oc­cu­pa­tion.

She was charged with house­break­ing and tres­pass­ing.

The house­break­ing charge didn’t stick but she was con­victed of tres­pass­ing and fined R1 000 or 12 months’ im­pris­on­ment sus­pended for five years on one con­di­tion – that she not tres­pass again.

She ap­pealed be­fore the Gaut­eng High Court, Pre­to­ria, but two judges turned down her ap­peal and con­firmed that she was in­deed guilty of tres­pass­ing in her old house.

Zwane is now tak­ing her case to the Supreme Court of Ap­peal (SCA) in Bloem­fontein, with the help of the So­cio-Eco­nomic Rights In­sti­tute of SA.

They are ask­ing the SCA for spe­cial leave to ap­peal against her con­vic­tion.

The grounds of her ap­peal are that the Tres­pass Act does not ap­ply to peo­ple oc­cu­py­ing their homes.

Zwane says that de­spite the fact that she no longer law­fully owns the prop­erty, it is still her home and she has nowhere else to go.

In terms of her ar­gu­ment, both the Con­sti­tu­tion and the law per­tain­ing to the oc­cu­pa­tion of a res­i­den­tial home de­crim­i­nalise the un­law­ful oc­cu­pa­tion of land for res­i­den­tial pur­poses.

There­fore, her lawyers ar­gue, she could not have been prop­erly con­victed of tres­pass­ing be­cause an oc­cu­pier “can­not tres­pass in his or her home…” even if the oc­cu­pier is liv­ing there with­out the con­sent of the owner.

The cen­tral mis­con­cep­tion, at least ac­cord­ing to Zwane, is the court’s fail­ure to recog­nise that the prop­erty is her home – even though she no longer owns it – and that her evic­tion was un­law­ful.

Zwane said the the Tres­pass Act only be­came ap­pli­ca­ble once a proper evic­tion had been im­ple­mented.

But as she was not in­formed of it, nor given the chance to op­pose it, she feels un­fairly treated. “I went back into my house be­cause I have lived in it for 14 years and had nowhere else to go.

I should not be crim­i­nalised for tak­ing the only prac­ti­cal course open to me – stay­ing where I am un­til a rea­son­able al­ter­na­tive be­comes avail­able.”

Her case is due to be con­sid­ered some­time this year by the SCA.

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