Trespassing Flashcards
(11 cards)
What is the statutory source of the offence of trespassing in South African law ?
- Trespassing is governed by the Trespass Act 6 of 1959.
- Section 1(1) defines the offence as unlawfully entering or being upon land or a building without the necessary consent or a lawful reason.
What are the types of conduct criminalised under the Trespass Act ?
- Entering land/building without required consent.
- Remaining on land/building after consent has lapsed or been withdrawn.
What are the essential elements of the offence of trespassing ?
- Entry or being upon land/building;
- The property is land, a building, or part of a building;
- The entry or presence is unlawful;
- Culpability and intention.
What constitutes ‘entry or being upon’ under this Act ?
- Entry is physical presence on the property (e.g., crossing into the boundary).
- Remaining unlawfully occurs when a person initially enters lawfully but loses the right to stay, such as when consent is withdrawn.
- S v Brown a person cannot trespass by merely leaving objects (like building materials) on land, personal physical presence is required.
What types of structures are covered under the term “building” in the Act ?
- The term “building” includes movable structures, such as caravans.
- In S v Mavungu a caravan broken into on a property was held to be part of a “building” for purposes of trespassing.
What makes an entry or presence ‘unlawful’ under the Act ?
- There is no permission from the relevant person.
- There is no lawful reason under law/statute.
- There is no justification like necessity or negotiorum gest.
Whose permission is required to avoid criminal liability ?
- Lawfully occupied - Lawful occupier (e.g., tenant).
- Unlawfully occupied - Owner or person in charge (e.g., agent).
- In S v Molelekeng court accepted that tacit consent can justify presence e.g., repeated unopposed entries.
What are examples of having a lawful reason to be on property ?
- Police entering with a search/arrest warrant.
- Delivery person on request of resident.
- Entry to request permission.
- Servants entering to begin work under a valid contract.
Can necessity or justification serve as a defence to trespassing ?
Yes, such as saving a life, preventing property damage and acting in the owner’s interest, such as extinguishing a fire or defending the owner.
What mental state (culpability) is required for trespassing ?
- Intention is required.
- Accused must know or foresee they are entering/remaining without permission or lawful reason.
- If they genuinely believe they have permission, they lack intent.
What is the punishment for trespassing under the Trespass Act ?
A person convicted may be sentenced to a fine and/or imprisonment not exceeding two years.
