On 23 April 2019, SERI, filed an application for leave to appeal to the Constitutional Court (CC) against a Pretoria High Court judgment issued against Rachel Zwane, a 61 year old woman, who purchased her house with the assistance of a mortage bond in 2001 but 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 forcibly evicted from her home in May 2012. Left on the street by her house and having nowhere to go, she, her two children, and four grandchildren, re-occupied the home.
In January 2016, Zwane was brought to trial on criminal charges of house breaking and trespass. The magistrate convicted her on the charge of trespass and acquitted her on the charge of house-breaking, effectively criminalising her occupation of her own home. SERI, on behalf of Zwane, appealed her conviction in the Pretoria High Court which dismissed her appeal against the conviction and the sentence.
This application follows the denial of a special application for leave to appeal filed with the Supreme Court of Appeal (SCA) on 23 December 2018. In that appeal, SERI argued that the High Court inappropriately placed its stamp of approval on a process which permits a person to be evicted from their home without notice, and then convicted of a criminal offence simply because they are too poor to find alternative accommodation. On 29 March 2019, the SCA refused that application.
SERI maintains that even though an unlawful occupier has no common law right to live in his or her home, that does not render such occupation a criminal offence. In the current appeal, SERI is arguing 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.