Mom fights her eviction

Woman accused of trespassing in ‘own home’ after it was repossessed and resold

FOR years Rachel Zwane lived in a small house in Ennerdale, south Joburg, 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.

The new owner obtained 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 she has claimed 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 the condition that she would not trespass again.

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

Zwane was 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 were asking the SCA for special leave to appeal against her conviction.

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

Zwane said that despite the fact that she no longer lawfully owned the property, it was still her home and she had nowhere else to go.

The Constitution and law pertaining to the occupation of a residential home decriminalised the unlawful occupation of land for residential purposes.

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

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

Zwane said the the Trespass Act only became applicable once a proper eviction had been implemented. However, as she was not informed of it, or given the chance to oppose it, she felt unfairly treated.

“I went back into my house because I have lived in it for 14 years,” she said.

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

Simphiwe Mbokazi MAYENGWAYO (her clan name) boils water for afternoon tea in her mud hut in the Biyela rural area of Melmoth in northern Zululand, KwaZulu-Natal. The Biyela area is under the rule of Chief Sifiso Biyela. | African News Agency (ANA)