Exploiting Trespass Act loophole

FOR years Rachel Zwane lived in a small house in Ennerdale south of Johannesburg. With her were her 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 R1000 or 12 months’ imprisonment suspended for five years on one condition – that she not trespass again.

She appealed to the North Gauteng High Court, but two judges turned down her appeal and confirmed she was guilty of trespassing.

Zwane is 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, 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 so claims 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 became applicable only 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.

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