PROJECT: THE UNLAWFUL ENTRY ON PREMISES BILL
- Isabel Spies
- 1 day ago
- 9 min read
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1. CURRENT STATUS:
In August 2022, the Department of Justice and Constitutional Development published a draft Unlawful Entry on Premises Bill for public comment.
The stated purpose was to repeal and replace the Trespass Act, No. 6 of 1959, which the Department described as an outdated colonial/apartheid–era statute and therefore not fit for South Africa’s constitutional order.
The draft sets out a standalone offence of “unlawful entry”, describes certain police powers and defences, and prescribes penalties (including fines and up to two years’ imprisonment in many circumstances).
The draft was widely circulated for comment and several stakeholder submissions and media articles followed.
Since the draft was published, there has been extensive public discussion and some social-media panic.
The Department issued clarifications at the time emphasising that the draft does not withdraw or eliminate the right to lawful self-defence, and that the document was a policy draft published for comment (i.e., it was at an early stage of the legislative process). Independent reporting and fact-checks have reappeared as social clips resurface; these have again confirmed that the draft was a proposal for comment and the Department said the draft is not an emergency operational law.
Plainly stated, the Bill was a 2022 draft.
It has been the subject of comment and debate;
it was not an act of Parliament and did not immediately replace the 1959 Act.
2. KEY PROVISIONS OF THE DRAFT BILL:
While there are many detailed clauses in the draft, the main, practical features that attracted attention were:
CREATES AN OFFENCE OF "UNLAWFUL ENTRY":
Defined as entry onto premises without express or implied permission from the owner or lawful occupier, the draft expands and modernises the definition to cover contemporary situations (and not only physical trespass to land/buildings).
REVERSE ONUS/PRESUMPTIONS IN LIMITED CASES:
For example, someone found on premises who is not an owner, occupier or employee and who cannot show permission may be presumed to have entered unlawfully.
DUTY TO INFORM INTRUDER AND OPPORTUNITY TO LEAVE:
The draft includes a requirement that an occupier or authorised person should inform an intruder that their entry is unlawful and direct them to leave; failure to leave after direction can become an offence.
This clause generated concern among farmers and others worried about having to personally confront intruders.
POLICE POWERS AND REMEDIES:
The draft describes police duties and powers to remove intruders and to arrest for the offence; it aims to clarify police responsibilities where unlawful entry is reported.
PENALTIES:
The draft retains criminal sanctions (fines and/or imprisonment — commonly limited to periods such as up to two years for certain offences under the draft), modelled on the existing Trespass Act’s sanction levels, though the structure and wording differ.
3. WHY IT WAS PROPOSED:
The Department explained that the Trespass Act 1959 is an outdated statute, drafted in a very different constitutional and social era, and that the draft Bill was intended to provide a modern, clearer legal framework that better balances property rights, safety, human dignity and constitutional protections.
The Department also said publishing the draft for comment is part of normal law-making: stakeholder input was invited.
4. STAKEHOLDERS' RESPONSES (EXAMPLES AND CONCERNS):
Agricultural groups and rural organisations expressed strong concern about provisions that would require a property owner or occupier to approach intruders and ask them to leave (arguing that such a duty could expose occupiers to violence).
These stakeholders called for clearer police responsibilities and for provisions that protect occupiers who face violent or dangerous intrusions.
Legal and professional bodies (e.g., the law society and legal associations) raised technical concerns about overlaps with other statutes (such as the Prevention of Illegal Eviction and Unlawful Occupation Act — PIE) and possible unintended consequences if wording were not carefully calibrated.
They urged close drafting and careful alignment with constitutional rights and existing law.
Civil society and human-rights commentators warned about any drafting that could criminalise vulnerable people (e.g., people seeking shelter, protestors or people in housing distress), and emphasised the need to preserve constitutional protections and fair processes.
5. PRACTICAL EFFECTS IF ENACTED AND WHAT WOULD CHANGE FOR THE MAN ON THE STREET:
If a bill like the draft were enacted in the same or similar form:
Property owners and occupiers would have a clearer criminal offence to report where people enter or remain without permission.
Police would have a clearer statutory duty to act to remove intruders in certain circumstances (subject to resources and priorities).
There would likely be increased prosecutions for some forms of unlawful entry, but the real effect would depend heavily on policing practice and prosecutorial discretion.
Critically, rights of self-defence under the Constitution and common law would not automatically disappear — any limitation on self-defence would itself need to pass constitutional muster.
6. RUMOURS AND MISINFORMATION AND OTHER COMMON INCORRECT CLAIMS:
Several short viral posts and clips circulated in 2022 (and resurfaced later) claiming dramatic effects from the draft.
Below are the most common incorrect rumours and the factual corrections.
RUMOUR 1: “The Bill makes it illegal to defend yourself if an intruder enters your home.”
This is false.
The Department explicitly said the draft does not remove the right to self-defence.
South African law recognises the right to defend oneself, one’s family and property against imminent unlawful attack; any use of force must still be reasonable and proportionate.
The published draft was a proposal for comment and not law; the Department issued clarifications when the panic first spread.
RUMOUR 2: "The Bill allows anyone to enter your property at any time.”
False.
The draft defines and criminalises unlawful entry; it does not give a general right for people to enter arbitrary private property.
The draft actually would create criminal liability for entry without permission — the opposite of “permits anyone to enter.”
Where the confusion arose was around clauses that discuss “expressed or implied” permission and circumstances where someone might claim a lawful purpose; these draft rules are about defences and presumptions, not broad permissions.
RUMOUR 3: “The Bill forces property owners to confront dangerous intruders themselves.”
Partly a misunderstanding.
The draft includes a provision that occupiers should inform intruders they are on the premises unlawfully and direct them to leave — this drew strong criticism from farmers and others who said it could put people in danger.
Stakeholders argued the provision should be reworded or accompanied by stronger police duties because it would be unreasonable to expect occupiers to put themselves at risk.
This was one of the central practical criticisms during the consultation process. So the rumour that owners are forced into harm is exaggerated, but the concern about the practical risk of that clause is real and was raised by stakeholders.
RUMOUR 4: “The Bill already replaced the 1959 Trespass Act and is in force.”
False.
The 2022 document was a draft for public comment and had not become law immediately on publication.
Multiple government and media statements emphasised it was a consultative draft and not yet enacted. (When social media posts repeated otherwise, government spokespeople and later fact-checkers clarified the mistake.)
7. LEGISLATIVE PROCESS AND OUTLOOK:
The draft was published in August 2022 for comment (with closing dates in September 2022).
After that, multiple submissions from civil society, agricultural bodies, legal associations and others were received and publicised.
That is a normal early step in the law-making process.
Publication for comment does not mean fast enactment.
Draft departmental bills often take time to be finalised, to be tabled in Cabinet, and then sent to Parliament as formal bills.
During that pipeline, many drafts are redrafted, paused, or withdrawn depending on policy priorities and stakeholder input.
Some media and fact-checks that republished the old social clips in later years (2024–2025) highlighted that the draft was not an immediate law and that clarifications had been issued.
8. LEGAL AND POLICY ISSUES TO WATCH:
SELF-DEFENCE AND PROPORTIONALITY:
Any law touching entry and property will rub against constitutional rights (life, dignity, security, and property), so wording must preserve the right to reasonable self-defence.
The Department said it intended no erosion of that right, but precise drafting matters.
OVERLAP WITH THE PIE ACT AND EVICTION LAW:
Criminalising entry and occupation can collide with statutory protections around unlawful eviction and occupation (the PIE Act).
Legal commentators warned of unintended consequences for land and housing disputes.
This was a repeated point in submissions.
OPERATIONAL POLICING REALITY:
A law is only as effective as its implementation.
Stakeholders demanded clarity on police duties so occupiers are not left to confront intruders themselves, and so vulnerable people are not criminalised.
9. PRACTICAL ADVICE FOR PROPERTY OWNERS AND THE PUBLIC:
Do not rely on social clips for legal change.
Always check departmental releases or government gazettes for the true legal status.
The draft was a proposal — not a law.
If you are threatened or facing a violent intrusion, prioritise safety (call police, avoid confronting violent intruders; document and report).
Legal reform is no substitute for cautious, safety-first behaviour.
Stakeholders repeatedly urged that occupier safety must be protected.
Follow official channels (Department of Justice publications, government gazette) to track whether any final bill is tabled in Parliament — until an Act is passed and proclaimed, the 1959 Trespass Act (and common law rights) remain the controlling law.
The Unlawful Entry on Premises Bill was a 2022 departmental draft intended to modernise the Trespass Act (1959).
It proposes a clearer offence of unlawful entry, police powers, and procedural steps —
but it also raised real, contested issues (especially the clause requiring occupiers to inform intruders
and give them an opportunity to leave).
Many of the dramatic social-media claims (that the Bill removed the right to self-defence, allowed people to enter private property freely, or had already become law) are incorrect. The matter is technical and politically sensitive: any final law would need precise drafting to balance occupier safety, police duties, human-rights protections and housing law.
For now (22 Oct 2025) the draft remains a major consultative document from 2022 rather than an enacted replacement of the 1959 Act; anyone wanting to rely on a legal change should check the Government Gazette and Department of Justice updates for any new developments.
The following is also important:
Legal practitioners continue to advise their clients to submit comments on the draft Bill.
The existing draft Bill does not prevent a person from defending themselves.
In fact, it does not even mention self-defence.
What it does emphasise, and this is very important, is that individuals should involve the police and/or authorities to assist in removing the person from the premises.
If a person entering the premises genuinely believes they have a legitimate interest in being there, they may have a defence, provided they can prove it.
The same laws regarding self-defence still apply. If your life is in immediate danger, you may act in self-defence, but the following conditions must be observed:
The other party’s attack must be unlawful.
The attack must actually be occurring.
The act of defence must be necessary.
The act of defence must be proportional to the threat faced.
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