Thys v S

The appellant, Ricardo Simon Thys, was charged in the Atlantis Magistrate's Court under the Trespass Act for unlawfully entering a house on the farm Olifants-kop without permission on 31 October 2023. The complainant was the landowner, Darien van der Spey. The appellant pleaded guilty via a written statement and was convicted and sentenced to a fine of R20,000 or 20 months imprisonment, wholly suspended for five years. During the guilty plea proceedings, it emerged that the appellant had resided on the farm his entire life (37 years), his mother still resided there, and he had worked for the complainant until his employment was terminated. The exchanges in court suggested the complainant was using the Trespass Act to evict the appellant after his dismissal. The matter was sent on special review after a superior noted the sentence exceeded the statutory maximum.

• Whether a property owner can use criminal proceedings under the Trespass Act to constructively evict an occupier as defined in the Extension of Security of Tenure Act (ESTA).
• Whether the appellant qualified as an 'occupier' under ESTA, thereby providing a substantive defence to the charge of trespassing.
• Whether the magistrate properly exercised inquisitorial duties during guilty plea proceedings to determine if the appellant fell within ESTA's protection.
• Whether the conviction was in accordance with justice given the improper use of the Trespass Act.

The conviction and sentence were set aside with immediate effect. The Director of Public Prosecutions or the senior prosecutor was given discretion to decide whether to institute proceedings against the appellant de novo.

When an accused is charged under section 1(1) of the Trespass Act, the State must prove, in addition to the other elements, that the accused is not an ESTA occupier. If the accused qualifies as an 'occupier' under ESTA, the deeming provision in section 1(1A) of the Trespass Act is activated and a criminal conviction cannot follow. In guilty plea proceedings for trespassing, the presiding magistrate has an inquisitorial duty to determine whether the accused potentially falls within ESTA's protection. Using the Trespass Act to compel a person to vacate their home through criminal sanction without adhering to eviction law safeguards is inconsistent with section 26(3) of the Constitution and renders those protections nugatory.

While not strictly obiter, the court noted that the process to repeal the Trespass Act was under way via the proposed Unlawful Entry on Premises Bill, 2022, though the status of that process was unknown. The court also observed that while S v Koko was helpful in navigating between PIE and the Trespass Act, it was less helpful in the context where ESTA provides a possible defence to a charge of trespassing.

This case is the first reported judgment to directly address the interplay between the Trespass Act and ESTA's cross-referencing provisions. It clarifies that ESTA occupiers have a complete substantive defence to trespassing charges and that criminal courts have an active duty to identify ESTA occupiers during guilty plea proceedings. It reinforces the Constitutional Court's warning in Olivia Road that using criminal sanctions to circumvent eviction protections violates section 26(3) of the Constitution. It also highlights the anomaly that section 2(2) of the Trespass Act (prohibiting ejectment of ESTA occupiers after conviction) is redundant because section 1(1A) prevents a valid conviction in the first place.