On 9 October 2017, SERI, on behalf of Rachael Zwane, filed heads of argument in an appeal against her conviction for trespassing. Zwane, a 59 year old woman, lived with her two daughters and four grandchildren in a small house in Ennendale 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 becasue 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. 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 until they were, once again, evicted in 2012.
Three years later, Zwane was brought to trial on criminal charges of house breaking and trespassing in January 2016. The magistrate convicted her on the charge of trespass and acquitted her on the charge of house-breaking.
SERI, on behalf of Zwane, has appealed her conviction to the Pretoria High Court on three ground. First, Zwane argues that she cannot be convicted of the crime of trespassing 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 To the extent that it ever did, it has been impliedly repealed by the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act 19 of 1998 (“the PIE Act”).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.
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.