Gary Warne | Manager - Legal Services
The Unlawful Entry on Premises Bill has recently been published for commentary.
The main purpose of the Bill is to repeal and replace the Trespass Act, No. 6 of 1959 (“the Trespass Act”) and to prohibit unlawful entry on premises.
Amongst other things, the Bill provides for:
- the offence of unlawful entry;
- the penalties to be imposed if a person is found to be guilty of the offence;
- the duty to inform an intruder of unlawful entry;
- the powers of the police; and
- defences to the offence of unlawful entry.
Owners and occupiers of immovable property are to take note of the provisions set out in the Bill as same would be applicable to them once the Bill is passed into law.
“Intruder” is defined as ‘a person who unlawfully enters on a premises or part of a premises’.
“lawful occupier” is defined as ‘one or more persons who physically occupies a premises and includes the –
(b) A person or persons who reside on the premises;
(c) A person or persons who has the responsibility for and control over –
(i) The condition of the premises;
(ii) The activities carried out on the premises; or
(iii) Control over persons allowed to enter the premises,
But does not include an employee of the lawful occupier.’
“Occupied premises” is defined as ‘a premises which is physically occupied by a lawful occupier.’
“Unlawful entry” is defined as ‘entry on a premises or part of a premises without the expressed or implied permission of the owner or lawful occupier.’
APPLICATION OF THE ACT
The Act (once the Bill has been passed) does not apply to, inter alia, any public place or public vehicle (as contemplated in the Control of Access to Public Premises and Vehicles Act, 1985).
UNLAWFUL ENTRY ON PREMISES PROHIBITED
In terms of the Bill –
(a) Every person who unlawfully enters a premises commits the offence of unlawful entry;
(b) A person found on or in a premises who is not a lawful occupier, or employee of a lawful occupier, and who does not have the expressed or implied permission by a lawful occupier is presumed to have unlawfully entered the premises;
Is guilty of an offence.
The alleged perpetrator can raise the defence that they reasonably believed that they had title to or an interest in the premises that entitled them to enter the premises.
FORMS OF NOTICE
Notice may be given either orally or in writing, or by means of a sign posted at or near the ordinary point of access to the premises.
DUTY TO INFORM INTRUDER OF UNLAWFUL ENTRY
As soon as it comes to the attention of the lawful occupier of the premises, or an authorized person, they must request the intruder or intruders, unlawfully on the premises to leave the premises immediately.
If the intruder/s does/do not leave the premises, or the lawful occupier or person authorized by them are threatened in any manner, they must without delay request assistance from the SAPS.
A person who is found guilty of the offence in terms of the Act (“the Bill”) is liable to a fine or imprisonment, or both.
WHAT DOES THIS MEAN FOR YOU AS AN OWNER/LAWFUL OCCUPIER OF PROPERTY ?
If the Bill is passed into legislation, property owners as well as lawful occupiers of property will be required to adhere to the requirements relating to persons who unlawfully enter their premises.
In other words, notice would have to be given to such persons verbally, or in writing, or in terms of proper signage that their entry is unlawful.
Should the notice given be ignored, the SAPS is to be notified immediately.
It remains to be seen if the Bill (in its current form) will be adopted into legislation as it is currently lacking in various respects.
In this regard the Bill does not take into account/deal with various issues such as self-defence and the right of a person to protect themselves as well as their property against harm or a potential threat of harm.
There is also some confusion as to the application of the Bill which hopefully will be clarified before same is passed into legislation.