This article examines the constitutionality of the Unlawful Entering on Premises Bill, 2022 (hereafter the Unlawful Entry Bill). The primary purpose of the Unlawful Entry Bill, if enacted into law, would be to repeal and replace the Trespass Act 6 of 1959 (hereafter the Trespass Act) and to prohibit unlawful entry into premises. The Trespass Act has been identified as a piece of colonial and apartheid-era legislation originally intended to combat trespassing, publications, and conduct provoking hostility between certain population groups, and which has lost its relevance in South Africa’s constitutional democracy. However, the Unlawful Entry Bill, paradoxically, contains similar provisions that undermine the constitutional imperatives and values of South Africa’s constitutional democracy, and if enacted in its current form, would have adverse consequences for the majority black population. The authors analyse the historical background of South Africa’s forced removals and dispossession of land from black people by the white settlers through violence, deceit and racially discriminatory laws, which have resulted in today’s unequal society. They go on to explore the prototypes of South Africa’s trespassing laws to draw similarities with the Unlawful Entry Bill and its shortcomings in light of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) and the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act 19 of 1998 (hereafter the PIE Act). The authors argue that the Unlawful Entry Bill contradicts the protections afforded by the PIE Act and various constitutional provisions, as it seeks to criminalise unlawful occupation and authorise evictions without judicial oversight. Accordingly, the article concludes that the Unlawful Entry Bill, in its current form, fails to meet the prevailing constitutional standards and should be comprehensively redrafted to align with the PIE Act, the Constitution's transformative mandate, and the protection of vulnerable persons.
Sithole et al. (Wed,) studied this question.