IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
(Henney J et Montzinger AJ)
[Reportable]
High Court Ref number: 246/24
Lower Court Case No.:[B675/23]
In the appeal between:
RICARDO SIMON THYS Appellant
and
THE STATE
Respondent
REVIEW JUDGMENT: 21 OCTOBER 2024
Montzinger AJ:
Summary Introduction
1. This special review 1 focuses on whether a property owner can use the
mechanism of criminal proceedings to constructively evict an occupier as
1 As the accused was legally represented the review of his trial and sentencing proceedings could
only came before this court by virtue of s 303 read with ss 304(2)(a) of the Criminal Procedure Act,
generally referred to as a ‘special review’
defined in ESTA2.
2. On 4 April 2024 , the appellant, who was legally represented during the
proceedings, was charged in the Atlantis Magistrate’s Court for contravening
the provisions of ss 1(1)(a) or (b) read with ss 1(1A), 1(2) and 2 of the
Trespass Act, further read with ss 250(1)(d) of the Criminal Procedure Act 3.
The State alleged that the appellant on 31 October 2023 unlawfully and
without permission entered a house on the farm Olifants -kop, Western Cape
without the permission of Darien van der Spey . The last-mentioned person
being the owner or person in charge of the land and/or building on the farm.
3. The appellant was convicted and thereafter sentenced on the same day to
pay a fine of R 20 000,00- or twenty-months imprisonment. The sentence was
wholly suspended for five years, on the condition that the appellant is not
found guilty of trespassing or housebreaking with intent to steal and/or theft
during the suspension period.
4. On 5 June 2024 , a superior pointed out to the magistrate, that the sentence
imposed exceeded the penal limit of the c rime of trespassing. The magistrate
was asked to send the matter to this court for special review . On 21 June
2024, the magistrate did so and addressed a letter, that accompanied the trial
record, confirming that the fine of R 20 000,00 that was imposed should rather
have been R 2 000,00. According to the magistrate t he irregularity occurred
due to an oversight and t he review judge was asked to correct only the
sentence in respect of the amount of the fine.
5. I have reviewed the trial record, the presiding magistrate’s cover letter to the
reviewing judge and had regard to the nature, impact and extend of the
irregularities. I did not deem it necessary to request further clarification in
2 Extension of Security of Tenure Act, 62 of 1997 (the “ESTA”)
3 51 of 1957 (the “CPA”)
order to determine whether the proceedings were in accordance with justice 4.
The matter was henceforth treated as an appeal5.
6. The error identified by the presiding magistrate was obvious. The appellant
was sentenced to pay a fine of R 20 000,00 while ss 2(1)6 of the Trespass Act
provides for a sentence of a maximum fine of R 2 000,00. The appellant would
therefore be entitled to at least a correction of the sentence by this court.
7. However, I am of the view that the appellant’s conviction was not in
accordance with justice as it should have been apparent to the magistrate that
the provisions of the Trespass Act were used to constructively eject the
appellant from the Olifants-kop farm.
8. I therefore turn to consider the appellant’s guilty plea proceedings and
whether it was conducted in accordance with justice . I do this by considering
the Trespass Act and the current applicable eviction law legislation.
The Trespass Act and eviction legislation
9. In our pre-constitutional era eviction s mostly took place in terms of the
Prevention of Illegal Squatting Act also known as PISA 7, which sought to
criminalise, amongst other things, unlawful occupation of land. Our new
Constitution8 introduced ss 26(3) that provides that no one may be evicted from
their home, or have their home demolished, without an order of court made
after considering all the relevant circumstances , and that no legislation may
permit arbitrary evictions.
4 as provided for by ss 304(1) of the CPA
5 in terms of ss 304(2)(a) of the CPA read with s 14(3) and s 19(c) of the Superior Court Act, 10 of
2013
6 This section provided as follows: provides that: “Any person convicted of an offence under section 1
shall be liable to a fine not exceeding R2 000 or to imprisonment for a period not e xceeding two years
or to both such fine and such imprisonment.”
7 Prevention of Illegal Squatting Act 51 of 1951
8 Act 108 of 1996
10. Subsection 26(3) of the Constitution introduced a range of reform laws in
respect of eviction. Two main pieces of legislation were enacted. ESTA9 with its
main purpose to guarantee basic human rights to people who live, with consent
of the landowner, in rural and peri -urban areas and to preve nt unfair and
arbitrary evictions. PIE10 in turn regulates the eviction of unlawful occupiers on
land11 otherwise not covered by ESTA . This means that occupiers, whether
rural or residential can no longer be evicted without a court order an in terms of
either PIE or ESTA and all other laws that indirectly impacts on an occupier’s ss
26(3) rights must yield to the Constitution and either PIE or ESTA.
11. This includes the Trespass Act. Although the Act has its origin during our dark
history of apartheid 12, post 1994 the Act was amended to bring it line with our
new constitutionally infused eviction laws.
12. Subsection 1(1) of the Trespass Act makes the following conduct a crime:
"Any person who without the permission—
(a) of the lawful occupier of any land or any building or part of a
building;
or
(b) of the owner or person in charge of any land or any building or part
of a building that is not lawfully occupied by any person, enters or is
upon such land or enters or is in such building or part of a building,
shall be guilty of an offence unless he has lawful reason to enter or be
upon such land or enter or be in such building or part of a building."
13. Importantly ss 1(1A)13 in turn provides that:
9 Extension of Security of Tenure Act, 62 of 1997 (“ESTA”)
10 Prevention of Illegal Evictions and Unlawful Occupation of Land Act, 19 of 1998 (PIE)
11 See the definition of ‘evict’ in s 1 of PIE. It means to deprive a person of occupation of a building or
structure, or the land on which such building or structure is erected, against his or her will.
12 Being called a lynchpin law by the court in Economic Freedom Fighters and another v Minister of
Justice and Constitutional Development and another 2019 (2) SACR 297 (GP) ; [2019] 3 All SA 723
(GP) (“EFF v Minister”) – par [3]
“A person who is entitled to be on land in terms of the Extension of
Security of Tenure Act, 1997, shall be deemed to have lawful reason to
enter and be upon such land”.
14. It is obvious that the Trespass Act criminalises unlawful occupation of land and
provides a mechanism for summary ejectment. When ss 1(1A) is read with ss
1(1) it means that while a person could possibly be convicted of the crime of
trespassing in terms of ss 1(1)(a) and (b) , a substantive defence to such a
charge can be raised that the accused is a person who has a lawful reason to
enter and be upon such land in terms of the provisions of ESTA. Therefore,
considering ss 1(1A) of the Trespass Act, if an acc used is charged with this
crime the State has an obligation to prove that the person charged with
trespassing is not a person entitled to be on the land.
15. Section 250 of the CPA establishes a legal presumption related to offences that
require a license, permit, or other form of authority . W ithout the necessary
authority, an accused is presumed not to possess that authority unless it can be
proved otherwise.
16. As alluded to earlier, ss 2(1) of the Trespass Act contains the penal provisions
that relates to ss 1(1). However, ss 2(2)14 in turn provides that:
“(2) A court which convicts any person under subsection (1) may make
an order for the summary ejectment of such person from the land
concerned: Provided that an occupier who ha s a right of residence or
right to use land in terms of the Extension of Security of Tenure Act,
1997, shall not be ejected in terms of this subsection from land in
respect of which he or she has such a right.”
13 This section was inserted in the Trespass Act by s 29 of the Extension of Security of Tenure Act, 62
of 1997 with effect from 28 November 1997
14 Subsection 2 substituted by s. 1 of Act No. 59 of 1983. Subs. (2) inserted by s. 29 of Act No. 62 of
1997.]
17. Considering the wording of ss 2(2) , it is on ly triggered following a conviction
under ss 1(1). However, ss 2(2) imposes a clear limitation on the penal
provisions by expressly stating that an occupier under ESTA cannot be ejected
from the land in question. This creates both an anomaly and a contradi ction
when read alongside section 1(1A). The effect of s 1(1A) is that an ESTA
occupier cannot be convicted of trespassing, as the person is deemed to have
a lawful reason to be on the land. Consequently, ss 2(2) becomes redundant,
as the possibility of ejecting an ESTA occupier as a punishment under ss 2(2)
can never arise, given that no conviction for trespassing could be validly
secured in the first place. T hus, the sections appear to be at odds, with ss 2(2)
becoming inapplicable under the same circumstances where s 1(1A) grants
protection.
18. To complete the picture s 27 of ESTA provides that: “Nothing in this Act shall
affect the rights of an owner or person in charge in terms of the Trespass Act, 6
of 1959”. Section 27 of ESTA seems to endorse the provisions of the Trespass
Act in that an owner or person in charge is entitle d to charge a person with
trespassing, of course barring that the person charged is n ot an occupier as
defined in ESTA or has a lawful reason to enter upon such land or building.
19. I did not come across many judgments on the possible abuse of the Trespass
Act to construct evictions by landowners. I could also not find a judgment that
deals with the Trespass Act and the provisions of ESTA. However, this is not to
say that the mischief, of using the Trespass Act to construct evictions, is not
playing out across our country and in our lower courts.
20. This is a mischief that courts must gua rd against as it was confirmed by the
Constitutional Court in Olivia Road15 that:
“…Section 26(3), like all provisions of the Bill of Rights, deserves a
generous construction. The section prohibits eviction of people from
their home absent a court order that must be made after taking into
15 Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of
Johannesburg and Others 2008 (3) SA 208 (CC); 2008 (5) BCLR 475 (CC) (“Olivia Road”)
account all the relevant circumstances. It means in effect that no person
may be compelled to leave their home unless there exists an appropriate
court order. The provisions of section 26(3) would be virtually nugatory
and would amount to little protection if people who were in occupation of
their homes could be constitutionally compelled to leave by the exertion
of the pressure of a criminal sanction without a court order. It follows
that any provision that compels pe ople to leave their homes on pain of
criminal sanction in the absence of a court order is contrary to the
provisions of section 26(3) of the Constitution…”16
21. One judgment, S v Koko 17 does alert one to the mischief in the use of the
Trespass Act, but in the context of an occupier in terms of PIE. In S v Koko the
accused was convicted for having entered onto premises without the
permission of the lawful owner thereof. There were no prior civil eviction
proceedings to determine the lawfulness of the accused’s occupation. Mr Koko
was charged with trespassing and sentenced to a fine of R1 000- or 100-days’
imprisonment plus a further 9 months' imprisonment suspended for a period of
5 years on certain conditions. On special review this division found that the
provisions of PIE did not preclude a prosecution of an unlawful occupier in
terms of the Trespass Act . Also, as the prosecution of a person in terms of s 1
of the Trespass Act does not per se entail an eviction it does not conflict with
the provisions of ss 4(1) of PIE 18. In EFF v MEC 19 a full bench endorse S v
Koko that the Trespass Act was in harmony with the PIE Act20.
22. However, the court in S v Koko did recognise that the Trespass Act could be
used to orchestrate an eviction as the court issued a warning to the Director of
Public Prosecutions that its office should guard against prosecutions in terms of
the Trespass Act used by owners and person s in charge of land and/or
16 Olivia Road par 49
17 S v Koko [2005] JOL 14870 (C); 2006 (1) SCR 15 (C) (“S v Koko”)
18 par 10 – see also EFF v Minister par 79
19 EFF v Minister n 12 above par 79
20 A process to repeal the Trespass Act is under way . The status of that process is unknown. The call
for comments on the proposed Unlawful Entry on Premises Bill, 2022 which main purpose was to
repeal and replace the Trespass Act, 6 of 1959 was published in Government gazette No. 46705 of
12 August 2022.
buildings as a means to procure the eviction of persons without compliance
with the onerous, but salutary provisions of the PIE Act21 .
23. While the judgment of S v Koko is helpful to navigate between PIE and the
Trespass Act, it is less helpful in the context where ESTA is a possible defence
to a charge of trespassing. ESTA and the Trespass Act expressly cross
reference each other. Consequently, any attempt to invoke the Trespass Act to
compel an individual to vacate their home through the pressure of criminal
sanctions22, without adhering to the procedural safeguards of the country’s
eviction laws23, like ESTA and PIE, would be inconsistent with the constitution
and would effectively nullify the protections enshrined in s s 26(3) of the
Constitution.
The provisions and implications of ESTA on the Trespassing Act
24. From the relevant quoted extracts from the Trespass A ct alluded to earlier
ESTA is mentioned twice. First, as a possible defence, in form of a deeming
provision and again made under the penal provision of ss 2(2) as a prohibition
against ejectment.
25. Contextually, interpreted it means that where an accused is charged with a
contravention in terms of s s 1(1) of the Trespass Act the State must prove, in
addition to the other elements mentioned in ss 1(1), that the accused is not an
ESTA occupier. If it suffices that the accused is in fact an ESTA occupier, the
deeming provision of ss 1(1A) will be activated and a criminal conviction cannot
follow.
26. With the prohibition against finding an ESTA occupier guilty of trespassing in
mind, I will now consider the requirements of an occupier envisaged in ESTA.
27. An "occupier" under ESTA is defined in ss 1(1) as follows:
21 S v Kok supra - par 24
22 Olivia Road par 49
23 S v Koko par 24
"A person residing on land which belongs to another person, and who
has or on 4 February 1997 or thereafter had consent or another right in
law to do so, but excluding—
(a) a person who has an income in excess of the prescribed amount;
(b) a person who has an income in excess of the prescribed amount; or
(c) a person using or intending to use the land in question mainly for
industrial, mining, commercial or commercial farming purposes, but
including a person who works the land himself or herself and does not
employ any person who is not a member of his or her family."
28. The Constitutional C ourt has held that the provisions of ESTA have to be
interpreted broadly, with the intent to afford vulnerable occupiers the fullest
possible protection of their rights under the law 24. Furthermore, ESTA was
enacted to improve the conditions of occupiers of premises on farmland and to
afford them substantive pr otections that the common law remedies may not
afford them25. It is with these principles in mind that the definition of an occupier
and other provisions of ESTA are considered.
29. There are essentially three requirements for a person to qualify as an occupier
in terms of ESTA. Firstly, in terms of ss 2(1) of ESTA the type of land must be
rural and not an established, approved, proclaimed or otherwise recognised in
terms of law as a township. ESTA also ap plies to any land within such a
township which has been designated for agricultural purposes in terms of any
law26.
24 Klaase and another v van der Merwe NO and others 2016 (6) SA 131 (CC) (“Klaase”) paras 50-51
25 Molusi and Others v Voges N.O. and Others 2016 (3) SA 370 (CC); 2016 (7) BCLR 839 (CC) par 7
26 "This Act shall apply to all land other than land in a township established, approved, proclaimed or
otherwise recognised as such in terms of any law, or encircled by such a township or townships, but
including — (a) any land within such a township which h as been designated for agricultural purposes
in terms of any law; and (b) any land within such a township which has been established, approved,
proclaimed or otherwise recognised after 4 February 1997, in respect only of a person who was an
occupier immediately prior to such establishment, approval, proclamation or recognition."
30. If the land designation is confirmed to be rural or agricultural and not a
township, the next consideration is whether the individual has consent to be on
the land . The concept of consent is a cornerstone in determining whether a
person qualifies as an ESTA occupier. ESTA defines consent broadly 27,
encompassing both express and tacit consent given by the landowner or the
person in charge of the land 28. Moreover, ESTA introduces the notion of
"deemed consent29," which further protects the rights of individuals who have
resided on land under certain conditions.
31. The last requirement is income. ESTA includes an income threshold that
determines whether a person qualifies as an "occupier" under the Act. The
definition of an occupier excludes a person from the protection of ESTA whose
income exceeds the prescribed amount of R 13,625 per mont h30. Individuals
with a gross monthly income above this amount are excluded from the
definition of an occupier under ESTA and its protection.
32. In civil eviction proceedings in terms of ESTA the obligation to prove that a
person complies with all the requir ements of the definition of an ESTA occupier
rests on the individual seeking to invoke the protection of the Act 31. However,
there is a caveat to this obligation. An owner who seeks the eviction of an
occupier under ESTA must make all the necessary avermen ts and adduce the
necessary evidence to make out a case in relation to every provision to which a
court must apply its mind in deciding whether an eviction order is justified32.
33. I interpose to say that in the context of a charge contravening the Trespass Act,
the obligation that may befall an ESTA occupier who claims protection by the
provisions of ESTA will not be applicable in criminal proceeding as the law is
27 Section 1 of ESTA
28 par 53 of Klaase
29 Subsections 3(4) and (5) of ESTA provides that for the purpose of civil proceedings in terms of
ESTA, a person who has continuously and openly resided on land for a period of (a) one year shall be
presumed to have consent to do so unless the contrary is proved and (b) three years shall be deemed
to have done so with the knowledge of the owner or person in charge.
30 See Reg 2(1) in Schedule A, GN R1632 of 18 December 1998 as amended
31 Skhosana and others v Roos t/a Roos se Oord and others 2000 (4) SA 561 (LCC)
32 De Kock v Juggels 1999 (4) SA 43 (LCC) at 50B - D
well established that:
“In all criminal cases it is for the State to establish the guilt of t he accused,
not for the accused to establish his innocence. The onus is on the State to
prove all averments necessary to establish the guilt of the accused, not for
the accused to establish his innocence…”33
34. Therefore, if an individual is an occupier as define d in ESTA, then the
provisions of ESTA established a comprehensive process to govern the
eviction of such an occupier. It is not necessary for purpose of this judgement
to venture into the strict procedural requirements of ESTA, suffice t o say that
they must be complied with in order to obtain a court order to evict.
35. However, in the context of criminal proceedings where the charge is one of
trespassing and having regard to how the provisions of the Trespass Act is
phrased, a criminal court must start with determining whether the accused is an
ESTA occupier or not. Once it is found to be the case a conviction i n terms of
ss 1(1) the Trespass Act cannot follow. Nor can a summary ejectment as
provided for in ss 2(2) of the Trespass Act be granted.
Guilty plea proceedings – legal principles
36. Having regard to the exposition undertaken in the previous paragraphs what
does it mean for a magistrate faced with having to decide a criminal charge of
trespassing in terms of ss 1(1) of the Trespass Act, in respect of an accused
like the appellant in this instance?
37. Since the offence the appellant was charged with merited punishment of
imprisonment or detention without the option of a fine, the appellant’s guilty
plea proceeding was governed by ss 112(2) read with ss 112(1)(b).
Respectively, these provisions regulate the circumstances where an accused
pleads guilty in terms of a written statement or in the case where an
33 R v Ndhlovu 1945 AD 369 at p 386 , See also: S v van der Meyden 1999 (1) SACR 447 (WLD) at
448 F-H
undefended accused is questioned by the presiding officer . It such instances it
is the presiding officer’s duty to be satisfied that the accused is gui lty of the
offence to which was pleaded.
38. The legal principles governing the assessment of a guilty plea are well -
established in our law. It is sufficient to reiterate that s s 112(1)(b) and (2) of the
CPA is designed to protect an accused, whether represented or unrepresented,
from the prejudicial consequences of an incorrect guilty plea. It requires the
presiding officer to be satisfied 34 that the plea of the accused, on all the
essential elements of the offence , amounts to an unequivocal admission of
guilt.
39. The principle that criminal proceedings should be ‘in accordance with justice’, is
now constitutionally infused and at the heart of the right to a fair trial 35 provided
for in ss 35(3) of the Constitution. The procedural fa irness of a trial, include
guilty plea proceedings.
40. The presiding magistrate court should perform its inquisitional function, where
an accused pleads guilty, whether represented or unrepresented to determine
whether an accused potentially falls within the definition of an occupier as
defined in ESTA. If it is found that the accused raised issues that brings him/her
under the purview of the protection of ESTA, the magistrate must rather record
a plea of not-guilty and allow the proceedings to continue on that basis.
41. In guilty plea proceedings where the charge involved contravention of the
Trespass Act it is incumbent upon the presiding magistrate to exercise the
inquisitorial powers afforded to the court to ensure that justice is done. This
duty requires th e magistrate to thoroughly question the accused, in terms of s
112(1)(b), where such an accused is not legally represented , about the
protective provisions of ESTA and also raise this issue with an accused’s legal
representative if it is not de alt with in a s112(2) written plea . The magistrate
must actively determine whether the accused is an ESTA occupier or has a
34 S v Mkhize 1978 (1) SA 264 (N) at 267
35 S v Dzukuda and Others; S v Tshilo 2000 (4) SA 1078 (CC); 2000 (11) BCLR 1252 (CC) at para 9.
lawful reason to be on the land under ESTA, as such a status would provide a
substantive defence to the charge.
42. Additionally, the magistrate must be vigilant in assessing whether the Trespass
Act is being improperly used as a mechanism to constructively evict an
accused, without following the proper eviction procedures under PIE or ESTA.
If any defence under these acts arises, the mag istrate must enter a plea of not
guilty.
The errors in the conviction of the appellant
43. In the present case the exchanges between the magistrate , the prosecutor
and the appellant’s legal representative during the sentencing proceedings
should have raised doubt over the appellant’s unlawful occupation of the
house on Olifants -kop farm . Based on this the court should have entered a
plea of not guilty and allowed the trial to continue on that basis36.
44. On consideration of the record, i t is evident that neither the magistrate,
prosecutor nor the appellant’s legal representative had an appreciation that
the Trespass Act expressly refer s to ESTA. If there was an appreciation for
the substantive and procedural requirements laid dow n in ESTA to evict an
occupier, as defined, the appellant should never have been convicted on the
charge of Trespassing. Some of the exchanges between the magistrate and
the legal representative should have alerted the magistrate that the appellant
was an ESTA occupier:
45. Mr. Hanise, the appellant’s legal representative , read the appellant’s written
guilty plea statement 37 into the record. The relevant part of the statement
reads as follows:
“I admit that on the 31 st of October 2023 and at Olifants -kop farm in the
district of the city of Cape Town Your Worship I unlawfully and without
36 Attorney-General, Transvaal v Botha 1993 (2) SACR 587 (A) and S v H 2004 (1) SACR 144 (T)
37 In terms of section 112(2) of the CPA
permission of Darien van der Spey the lawful occupier of any land any
building or part of building to it Olifants-kop farm….
What happens on the day in question I went to the address to go and
sleep I went into the door which was wide opened there was nothing
inside the house it was empty, so I slept on the floor, was found sleeping
Your Worship in the house the following morning.
I had no right to do so as I did at the time of the offence I knew that my
actions were wrong and punishable by this Honourable Court.”
46. During the reading of the appellant’s written guilty statement into the record
the magistrate interrupted the proceedings, a fter hearing that it was a farm,
with the following questions:
“COURT:…Okay just pause it there I hear you are saying he is admitting
trespassing on Olifants farm or Olifants farm house? That would be
important for punishment, was he on the house or was h e just on the
farm.
MR HANISE: In the house Your Worship.
COURT: Oh it is going to admit being in the house.
MR HANISE: Confirm so
COURT: Because he just admitted just being on the farm not the house.
MR HANISE: On the house Your Worship inside the house.
COURT: Ok listening.
MR HANISE: Yes may I amend the statement to include Olifants -farm
house Your Worship?
COURT: Yes”
47. The first error is encapsulated in the foreshadowed exchange. The question
was indeed important but not for purposes of punishment, it was rather
important for determining whether the state has proven the elements of the
crime. Whether the appellant was accused of committing trespassing at a
particular house or on the farm is irrelevant for purposes of ESTA. The rights
of occupiers in terms of ESTA relates to the ‘land’ 38 (or the farm) and is not
strictly limited to a particular house 39. If the appellant was sleeping in a house
that he was not supposed to sleep in the landowner should deal with him in
terms of the rules of the farm, but criminal proceedings in terms of the
Trespass Act is not the appropriate remedy. Therefore, the first requirement
for EST A’s applicability was present as it was not in dispute that the
applicable land or property was rural or agricultural land.
48. After the plea was entered into the record there were further exchanges that
confirm how the provisions of ESTA operated in favour of the appellant:
“MR HANISE: Your Worship in mitigating Your Worship the accused is a
37 – year – old male he is Your Worship he was residing at Olifants farm
with his mother all his (sic) live”
COURT: But not in this specific house.
MR HANISE: Not in the specific house Your Worship the mother is still
residing that farm Your Worship however not in the specific house.
49. This exchange show that the appellant has been residing on the farm for 37
years as it is said he has been living there for ‘all his life’. As a result he had
deemed consent as contemplated in s 3(4) or (5) of ESTA and the duty was
on the complainant or in this instance the State to rebut the presumption.
50. The following exchange confirm that the appellant was an employee as well
as the landowner’s attempt to get rid of the appellant after the termination of
his employment:
COURT: I don’t understand that I heard he not trespassed in this specific
house where he did not reside how did the [y] complainant have made a
case for him to leave the farm, I don’t understand the complainant said
telling him to go trespassing the house.
38 Oranje and Others v Rouxlandia Investments (Pty) Ltd 2019 (3) SA 108 (SCA) par 10
39 Snyders & others v De Jager & others 2017 (3) SA 545 (CC) para 77.
MR HANISE: No Your Worship app arently Your Worship eh the, the
accused was, was, was working for the complainant and eh the
complainant [sic: the accused] just stayed away he did not come to work
until he was fired by the complainant and he remained on the farm and eh
the complainant has been trying to get rid of the accused to eh vacate the
farm not to stay there anymore but apparently he was been he has been
uhm eh refusing Your Worship or he has been neglecting the move out
Your Worship of the farm hand the …[intervene]…
COURT: but h ow will this case assist the complainant to get accused to
move out of the farm?
MR HANISE: By getting him arrested Your Worship so that he does not
come back to the farm rather being sent to prison Your Worship.”
51. The termination of an occupier’s right o f residence or his eviction prior to
resignation or dismissal in terms of the LRA40 is irregular 41. An owner is
obliged to continue housing dismissed employees pending a dispute on the
validity of their dismissal, which includes the lawfulness thereof42.
52. The next exchange show that the magistrate was in fact concerned about
whether the appellant was being evicted with the use of the Trespass Act:
MR HANISE: Your Worship in our view that is no longer this home
because the owner is trying to evacuate vacate him Your Worship he is
trying to get rid of him.
COURT: But your view is wrong. You can only evict if you get the laws of
this country are very clear and they historical most important historical
reasons for these laws.
MR HANISE: Yes your worship
COURT: That you can only evict with a court order, so if, if today or
whenever he walks back home on the farm and at the gate he meets the
40 Labour Relations Act 66 of 1995
41 S 8(3) of ESTA and Karabo and Others v Kok and Others 1998 (4) SA 1014 (LCC) at 1019F.
42 Karabo and Others v Kok and Others supra at 1022C–H
farm owner and saying you cant come in yes he is entitled to approach
the civil court on urgent basis.
53. The exchanges, foreshadowed in the previous paragraphs , illustrate that the
appellant’s legal representative ha d a limited or no understanding of the
substantive requirements of an eviction of an ESTA occupier. If he did he
would never have made the submissions he did. Although the magistrate had
some sense about the consequence of the guilty finding, the error was already
committed when the appellant was convicted. The magistrate should have
conducted this enquiry prior to convicting the appellant, but having said that, s
113 of the CPA empowers a court to enter a plea on not guilty at any stage
before sentence.
54. After these exchanges it should have been apparent to the magistrate,
prosecutor and the appellant’s attorney that the appellant could not have been
found guilty. Firstly, it was expressly stated on the record that the complainant
was using the Trespass Act to evict the appellant. This is exactly what the
Trespass Act was trying to prevent by its direct reference to ESTA. That
conclusion alone should have resulted in a plea of not-guilty being entered on
behalf of the appellant.
55. However, the further exchanges between the magistrate and the appellant’s
legal representatives should have lead them to the conclusion that the
appellant was clearly an occupier as defined in ESTA. The land applicable
was a farm or rural land . The appellant has lived on the farm all his life with
this mother. Furthermore, he has worked for the complainant on the farm, but
was recently fired from his work, that meant he had no income to earn in
excess of the threshold of R 13 635 per month income.
56. This meant he could never have been found guilty of the crime of
Trespassing. The presumption in s 250 of the CPA is rebutted if an accused is
an ESTA occupier and could not assist the State. The conviction and
sentence therefore falls to be set aside.
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Conclusion
57. Rather than using the Trespass Act to remove an occupier, the correct legal
procedure to follow was the eviction process prescribed by ESTA. Although, the
Trespass Act criminali ses unauthori sed entry onto land, magistrates and
prosecutors should guard against the provisions of the Trespass Act being
used to evict and should always undertake an inquiry to determine whether the
accused’s presence was lawful under ESTA. In this matter the magistrate failed
to do so. Consequently, the proceedings were not in accordance with justice.
58. Therefore, I would make the following order:
(a) The conviction and sentence in respect of the provisions of the Trespass
Act are set aside with immediate effect.
(b) It is left within the discre tion of the Director of Public Prosecution or the
senior prosecutor of the lower court to decide whether to institute the
proceedings against the appellant de novo.
____________________________
A MONTZINGER
Acting Judge of the High Court
I agree. It is so ordered
____________________________
R HENNEY
Judge of the High Court