The interpretation of the Constitution of South Africa, 1996 (Act 108 of 1996) has led to major challenges in recent years with the application of the Trespass Act, 1959 (Act 6 of 1959), as well as the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (Act 19 of 1998), or the PIE Act.

Lees dit in Afrikaans

The uncertainty is the result of two different interpretations of the interaction between the aforementioned laws. One law considers it an offence to trespass on someone’s land without permission, while the other offers protection against arbitrary evictions to people who would occupy land illegally (erect a habitable structure).

If a person wanted to occupy someone else’s land illegally, the occupation would have to be preceded by actual trespassing on the land. The one argument is that the offence of trespassing took place before the occupation and that, notwithstanding the subsequent occupation of the land, the unlawful occupier can still be prosecuted for the offence of trespassing.

The counterargument, which is also contained in official policy documents of the South African Police Service (SAPS), is that occupying the land by erecting and inhabiting a structure rescinds the initial crime of trespassing. The SAPS cites this interpretation as a reason not to prosecute unlawful occupiers of land for their initial trespassing on the land.

A loophole in legislation

This confusion, and in particular the latter approach of the SAPS, creates a legal vacuum that makes it possible for individuals and organisations to encourage the occupation of land.

In practice, the strategy of land occupiers or institutions instigating such actions is to trespass on land and erect a habitable structure as soon as possible, thus escaping prosecution for the crime of trespassing. This legal vacuum has led to the emergence of a worrying trend in recent years, whereby prosecutions for trespassing have seemingly become the exception rather than the rule.

The aforesaid state of affairs has created major problems for landowners, as the refusal to open a dossier for a criminal charge often results in trespassers on land becoming occupiers of land. Private landowners are then expected to institute expensive eviction proceedings against unlawful land occupiers.

In a recent groundbreaking case, however, the Constitutional Court rejected an attack on the constitutionality and associated validity of the Trespass Act. In the case of the Economic Freedom Fighters (EFF) and another vs the Minister of Justice and Correctional Services and another (CCT/201/19), the EFF specifically requested a court ruling stipulating that the Trespass Act cannot apply in tandem with the PIE Act.

If granted as requested, the order would have been in line with the SAPS’s current interpretation and would probably open the way for further and large-scale land occupations, without the SAPS being able to intervene in any way to protect private property, as prescribed by the SAPS’s constitutional mandate to prevent crime.

Although the Constitutional Court, in their court ruling, still left the door open for a future constitutional attack on the Trespass Act, the verdict and the legal certainty it brings in terms of this issue are welcomed.

Duty of the SAPS prioritised

The SAPS will in future have to reconsider the application of the Trespass Act. It is important to note that the Constitutional Court does not exclude the Trespass Act when considering the application of the PIE Act. This means that upholding the rule of law and the SAPS’s duty to prevent crime will force the police and the South African Prosecuting Authority to come up with new strategies to prevent the occupation of land.

This is not only in the interest of landowners, but also of defenceless and often homeless people, who are unscrupulously abused for political agendas which are promoted by the occupation of land. Criminal prosecution serves as deterrent and should discourage the occupation of land while hopefully also keeping the organisers of land occupation, who use it to advance their political agendas, on the straight and narrow.

The ruling and the room it leaves for future attempts to test the constitutionality of the Trespass Act should force agriculture and other organisations which deem the protection of private land important, to be prepared. Should this issue come before the courts again in future, appropriate facts and legal arguments must be presented to drive the case forward. For now, the legal position is clear but not yet final. – HJ Moolman, Moolman & Pienaar Incorporated

For more information, contact HJ Moolman on 018 297 8799, 018 297 0397 or