trespass - eviction - house sold in execution - Ennendale - Trespass Act - North Gauteng High Court - Supreme Court of Appeal

SERI represents Rachael Zwane, a 61 year old woman, who lived with her two daughters and four grandchildren in a small house in Ennerdale outside of Johannesburg since early 2001. Zwane purchased the house with the assistance of a mortage bond in 2001. In 2008, when Zwane lost her job because her employer of 20 years ceased trading, she struggled to keep up with her mortgage bond payments and fell into arrears. Without receiving proper notice, her bank sold her home in execution. The new owner of the property sought and obtained a default eviction order against her. Again, Zwane received no notice of the eviction application, or of the date of the eviction hearing. The first time Zwane became aware of the eviction proceedings was when she was actually forcibly evicted from her home in May 2012. Left on the street by her house, she, her two children, and four grandchildren, had nowhere else to go. In their desperation, one of Zwane’s grandchildren climbed back into the house through a broken window and opened the front door of the house from the inside. Zwane and her family then re-occupied the property.

Three years later, in May 2015, Zwane made her first appearance on criminal charges of house breaking and trespass. In January 2016, Zwane was eventually brought to trial and the magistrate convicted her on the charge of trespass and acquitted her on the charge of house-breaking. 

SERI, on behalf of Zwane, appealed her conviction to the Pretoria High Court on three grounds. First, Zwane argues that she cannot be convicted of the crime of trespass because the Trespass Act does not apply to those in unlawful occupation of their own homes. To the extent that it ever did, it has been impliedly repealed by the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act 19 of 1998 (“the PIE Act”). Second, Zwane says that, if the Trespass Act does apply, it must be unconstitutional, insofar as it criminalises the occupation of a home. Finally, if the Trespass Act is applicable and constitutional, then the sentence handed down by the magistrate amounted to an unjustified eviction and should be set aside on that basis.

On 28 November 2018, the Gauteng Provincial Division of the High Court dismissed her appeal against the conviction and the sentence. The High Court found that the appeal was based on the “flawed” premise that “the property in question” belongs to Zwane and that she was “the owner” of the property. However, the basis of the appeal was that even though she is not the owner of the property, and have no other right to be on it, the property is nevertheless her home. 

On 23 December 2018, SERI, on behalf of Zwane, filed an application for special leave to appeal to the Supreme Court of Appeal against the Pretoria High Court judgment which suggests that it is permissible to prosecute PIE Act unlawful occupiers for trespass. The application was denied.

On 23 April 2019, SERI filed an application for leave to appeal to the Constitutional Court. SERI argued that Zwane’s application raises three constitutional issues, namely whether unlawful occupation of a home in terms of section 1 of the PIE Act also amounts to the criminal offence of trespass under section 1 (1) of the Trespass Act. Further, in the event that it is decided that an unlawful occupier under PIE can be prosecuted under the Trespass Act, the question arises as to whether section 1 (1) of the Trespass Act is constitutionally valid, to the extent that it criminalises the unlawful occupation of a home. Lastly, whether there are constitutional limitations on the sentence that may be imposed following a conviction on the offence of trespass in one’s own home as a sentence that suspends a fine or imprisonment on condition that a trespass is not again committed within a specified period, or on condition that the convicted person leaves his or her home, will amount, in substance, to an eviction order.

The case raises important constitutional issues about the abuse or misuse of the Trespass Act to secure evictions that lead to homelessness. If the appeal is successful in achieving this objective, it will essentially prevent prosecutions for trespass in one’s own home throughout the province of Gauteng.

 

  • Zwane's application for leave to appeal to the CC (23 April 2019) here.
  • Zwane's notice of motion to the CC (23 April 2019) here
  • Zwane's application for leave to appeal to the SCA (20 December 2018) here
  • Appellant's Heads of Argument (9 October 2017) here.