trespass - eviction - house sold in execution - Soweto - Trespass Act - Protea Magistrate's Court

Molly Lehlongwa is an elderly woman who stays with family members in a four room house in Soweto, where she has lived since the mid-1960s. Her house was sold in execution of an outstanding balance of a small amount and the new owner attempted to evict her from the property, and then opened a trespass case against her. In February 2006 she was acquitted in the Meadowlands Magistrate's Court, after which the owner immediately laid a trespassing charge against her in the Protea Magistrate's Court. SERI represented Ms Lehlongwa and argued that the charge must be dismissed because Ms Lehlongwa cannot be charged twice, and applied for discharge on a plea of autrefois acquit. The application for autresfois acquit was upheld and the client was discharged accordingly.

SERI is to bring a rescission application reversing the eviction order and the sale of Ms Lehlongwa’s house by Nedcor, and is actively seeking a case resembling these facts in order to challenge the constitutionality of applying the Trespass Act in eviction matters.

The use of the Trespass Act to secure evictions from residential property raises important constitutional issues. The Trespass Act authorises ejectment upon proof of a criminal offence. Accordingly an eviction may take place without the consideration of all the relevant circumstances, as required by section 26(3) of the Constitution. Another issue is the fairness and constitutionality of using a criminal statute to pursue the civil remedy of ejectment – especially in circumstances where the unlawful occupation of a home has been decriminalised by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act).