Trespassing

Question 1

Defintion of trespass

Answer 1

if a person enters or is on someone else’s land or building without
permission from:
a) The lawful occupier, if someone is living or working there, or
b) The owner or person in charge (if no one lawfully occupies it),
unless they have a lawful reason to be there.

Question 2

 Trespass can happen in two ways:

Answer 2

a) Entering someone’s land or building.
b) Remaining on land or in building without permission or a lawful reason.

Question 3

Entering

Answer 3

physically crossing the boundary, eg. stepping over a fence.

Question 4

Def of being upon

Answer 4

staying on the property after your permission ends, or your
lawful reason no longer applies.

Question 5

What happens where permission is taken away?

Answer 5

If permission is taken away, person must be given reasonable time to leave.

Question 6

Extent of entry to constitute trespassing

Answer 6

entry must be personal, so you must physically go onto the property. -
Just sending a dog or throwing something over the fence is not enough.
 Even placing one foot on the property counts as entry, but minor actions, like
brushing against a corner, are often ignored as too trivial.

Question 7

Case law on entry

Answer 7

S v Badenhorst
S v Brown

Question 8

S v Badenhorst

Answer 8

• Badenhorst entered South African Railways property and stayed overnight.
• He was charged with housebreaking with intent to trespass.
• Charge sheet was vague and didn’t give enough detail,
• so the case was
  sent back for proper prosecution under the Constitution because the charge wasn’t clear enough.

Question 9

S v Brown

Answer 9

• Brown left building materials on a property where he had already bought a building,
• but he didn’t have permission to build on the land.
• He was charged under the Trespass Act for trespassing.
• Q: can someone be guilty of trespass without physically being present on
  the property?
• Court held that the Act requires personal presence on the property for a trespass charge.
• • Since Brown was not physically present, he could not be found guilty of
    trespassing.

Question 10

What Contitutes property according to the law?

Answer 10

 The law applies to any land or building, or part of a building.
 This includes things like a caravan, which counts as a “building”.
 If you only have permission for a specific part of a building, eg. one flat in an
apartment block, going into another part can be trespass.

Question 11

S v Mavungu

Answer 11

• Accused broke into a caravan and stayed there overnight. - - - - - - -
  He was charged with housebreaking and eventually convicted of
  housebreaking with intent to trespass.
  Q: does a caravan count as a “building” under the Trespass Act?
  Court held that a caravan qualifies as a building for purposes of the Act.
  Reasoning:
  The word “building” in the law should be interpreted broadly.
  It includes not only permanent, immovable structures, but also movable
  structures like a caravan, if they are being used as a place of residence or
  shelter.
  The purpose and use of the structure are more important than whether it’s
  movable or not.
  The caravan was considered a building, and since Mavungu unlawfully
  broke into it and stayed overnight, he was rightfully convicted of
  housebreaking with intent to trespass.

Question 12

Element of lawfulness

Answer 12

Your entry must be unlawful in order to be guilty

Question 13

When is conduct NOT unlawful

Answer 13

 You had permission / consent.
 You had a lawful reason.
 There’s a legal justification.

Question 14

Important aspects of consent

Answer 14

 If property is occupied, only the lawful occupier’s permission counts, not just
the owner’s.
 If property is not occupied, then you need the owner or person in charge’s
permission.
 Consent can be withdrawn, and then you must leave.
 Consent can also be tacit, eg. if someone lets you enter repeatedly and never
objects, this may count as consent.

Question 15

Case law on consent

Answer 15

S v Mdunge
S v Molelekeng

Question 16

S v Mdunge

Answer 16

S v Mdunge:
- The accused was found on a farm.
- - The owner of the farm was the father, but the son ran the farm, and was thus the lawful occupier.
- Accused was charged under Trespass Act for being on the farm without permission from the lawful owner.
- Accused argued that the correct person to give or deny permission was
the occupier (son), not the owner (father).
- The charge was amended to reflect the correct legal position that the occupier’s consent mattered.
- Accused was still found guilty of trespassing.
- - The court confirmed that the lawful occupier’s consent is what counts, not necessarily the owner’s.

Question 17

S v Mololekeng

Answer 17

• This case confirms that tacit consent is enough to defeat trespass charge. - Eg. of tacit consent:
  If an owner or occupier knows that A is on the land and says nothing, that
  silence may be treated as implied permission. - NOTE: the lawful occupier has the same rights as the owner when it
  comes to giving or denying permission. - The prosecution must prove that A did not have consent to be there. - Failure to object can be seen as tacit consent, which is legally sufficient.

Question 18

LAWFUL REASON:

Answer 18

You’re not trespassing if you have a lawful reason to be there.

Question 19

What does lawful reason include by law?

Answer 19

 Rights under the Extension of Security of Tenure Act.
 Acting under statutes or regulations, eg:
- Police with a warrant,
- A sheriff serving documents,
- A municipal official reading meter
 Contractual rights.
 Entering to ask for permission is not trespass.

Question 20

what constitute other legal justifications?

Answer 20

 Necessity: fleeing from danger from people or animals.
 Presumed consent: acting to help, eg. putting out a fire.
 Private defence: entering to protect someone from harm.

Question 21

Element of intention

Answer 21

To be guilty, the person must act intentionally.

Question 22

what does it mean to act intentionally

Answer 22

 This means they:
 Know they are entering someone else’s property,
 Know they don’t have permission or a lawful reason,
 Know the person who gave permission is legally allowed to do so.

Question 23

when will a person not be guilty based on the element of intention

Answer 23

If the person honestly believes they have permission, or that the owner wouldn’t object, they don’t have the required intention and are not guilty.

Question 24

Case law on intention

Answer 24

S v Woodrow
S v Jasat
S v Ziki

Question 25

S v Woodrow

Answer 25

oodrow was charged with housebreaking with intent to trespass. - - - - - He went to his ex-girlfriend’s house to talk after their breakup. She had refused to communicate with him, so he went to her home and broke a window to get in. Q: did he have intent to trespass? Court held that he did not intent to trespass, he only wanted to speak to her, not to stay unlawfully. However, he did damage property, so he was guilty of malicious injury to property, not trespassing.

Question 26

S v Jasat

Answer 26

- Jasat, an attorney, had stored files at someone else’s office. - - - - The owner went overseas and locked the office. Jasat broke the lock to retrieve his files. Jasat was found guilty of trespassing. Despite the files being his, he broke in without permission.

Question 27

S v Ziki

Answer 27

- Ziki built structures on land with initial permission. - He was later told to leave and demolish the buildings. - He stayed because he wanted compensation for what he had built. - Court held that Ziki was not guilty of trespassing, as he stayed not out of defiance, but because he was waiting for compensation. - Therefore, there was no intention to trespass.

Question 28

Puishment for trespassing

Answer 28

a) A fine, or b) Imprisonment for up to 2 years, or c) Both a fine and imprisonment.  Because of the Adjustment of Fines Act 101 of 1991, the maximum fine that can be given is R80 000.