The 'make your burglar some tea and bikkies' bill

Jeremy Gordin writes on the strange obligations imposed on homeowners by the Unlawful Entry on Premises Bill

Regretfully, because you might be eating your breakfast or imbibing the day’s first coffee, I must posit for you the following scenario.

You – and for the purposes of this example, I’m thinking of you as a male, but I mean no offence – you have plugged in the family’s rechargeable lamps, swallowed your nightcap, switched off the TV or closed your novel – The Last White Man by Mohsin Hamid, say – and gone to sleep.

Close by your spouse snores gently and a little further away your dependents are also in the arms of Morpheus, if not in those of some whippersnapper whom you thought went home two hours ago. If you are lucky, you might yourself be dreaming of a former boyfriend or girlfriend – when something suddenly wakes you.

Unsure what it is, groggy, probably still half-remembering what you’d just been up to with Claire or Richard, or both, you stumble (especially if you’re over 60) into the living-room. There – for they have managed to prise open the metal burglar door – you encounter two or three or four people of the male gender (again, I’m not being sexist, it’s generally males). They are clutching, if not pistols, knives or other sharp implements.

The faint smell of sweat and even ganja might be in the air, but just then you are not overly concerned with checking whether your sense of smell is still operative despite you having had a touch of Covid-19. You’re far more worried about the communication from the leader of the group, who has, besides a weapon, a fist full of cable ties.

He has made it clear that he and his comrades want everything from your house that they can carry. Moreover, he wants to know the location of your gun safe. Whether you actually have one seems irrelevant; for he mentions that in any case he’ll probably have to test your veracity on the subject with a hot iron. Meanwhile, one of the accompanying lads also wants to know from you, right now, where your wife and daughter(s) are.

What do you do? What can you do? Ah, there’s not one, all-inclusive response to those questions, is there? What’ll you do – or have done in the past [i] – depends on the specific circumstances and your resources.

What I can tell you, however, is what in fact you shall have to do – if the proposed new Unlawful Entry on Premises Bill, 2022 becomes law.

This piece of work, published in the Staatskoerant of 12 August for public comment (see here), appears to have been penned by some scholar employed by the department of justice and correctional services; or am I getting into oxymoronic territory?

To begin with, you (the home owner) must have a clearly visible sign outside – a graphic image is allowed – because, it seems, this will deter intruders or burglars. Equipped and armed, they’ll get to your boundary fence, read the sign, or look at the rendition of your poodle, have a quick consultation, and then leave. That, as best as I can figure out, is the theory. 

But if such a sign does not deter them and they get into your home, it’s legally incumbent on you, as soon as you find out that they’re there, to “request” that they leave the premises immediately. If they refuse, you must, “without delay,” request assistance from the SA police services, and inform SAPS while you are doing so “of the unlawful entry, the address of the premises and the approximate number of intruders”. Luckily, as far as I can tell, you don’t have to provide SAPS with the intruders’ ID numbers. ___STEADY_PAYWALL___

So here’s what you do. When you stumble or walk into the living room and find the intruders, you say: “Listen up, fellows, I think you ought to leave. But if you don’t particularly want to do so, take a seat please. I’ll put the kettle on and make some tea. Rooibos? Oh, and would you like some biscuits. Marie bikkies? Or wait, I think we have some of those addictive chocolate chip things. I’ll be back in a sec.”

Then you go to the telephone or find your mobile and phone the local cop shop – which will obviously answer within a couple of seconds, and where the first respondent will hear perfectly well what you’re trying to say sotto voce while you are simultaneously discovering that your mouth is so dry that you’re hardly able to speak and that you can’t even remember what your address is.

Oh, and while you’re doing all this, your spouse, or perhaps one of your 12-year-old daughters, dressed in rather flimsy PJs, will wander in, probably to help making the tea. And the intruders will of course be sitting tjoepstil waiting for tea; unless one or two courteously get up to assist your wife.

I know what you okes are thinking – that creature Gordin’s been hitting the weed or whisky again or he fell and bumped his head, or his gorgeous wife finally had the proverbial enough and klapped him. Or he’s had one too many Covid booster shots.

But, folks, I shit you not. The internet reference for the proposed new bill is above – “Never trust the teller, trust the tale” (DH Lawrence, I believe). Read it for yourself. As a learned SC – who is far too polite for his own good – remarked: “... the promulgation of this Bill would amount to nothing less than a reductio ad absurdum”.

The same SC – who thinks he’s smarter than I when it comes to the law, and he might just be right – also noted that the right to defend yourself, another person, your property or the property of another, against a current or imminent unlawful attack, goes back to the Corpus Juris Civilis, the body of Roman or civil law consolidated by Justinian in the 6th century CE.

Even orthodox Judaism, which vehemently eschews non-military violence, has the following: “If a thief be caught breaking in, and be struck down so that he die, there shall be no guilt of bloodshed for him” (Exodus 22:2, collated in the 6th century BCE).

Now, we don’t necessarily expect a scholar working for Minister Ronald Lamola to worry about Justinian or the ancient law-givers; we have our own struggle heroes and great legal thinkers (Dali Mpofu SC?) to whom to pay attention. But surely there is someone with some modicum of sense in the department? Or am I being absurdly optimistic again?

Ah, you know, you jaded and weary readers, you know what the root of all evil is, don’t you? Eve chapsing the apple in Gan Eden? Nah, don’t be silly. It’s “colonialism”. You knew that. C’mon. And there is indeed a short note prefacing the invitation for public comment on this piece of codswallop.

It reads (and I quote): “The Trespass Act has been identified as a piece of colonial/apartheid era legislation as it was originally designed to combat trespass, publications [sic] and conduct engendering hostility between certain population groups. The Trespass Act has therefore lost its relevance in our constitutional democracy”.

Mr Lamola, if that’s what you want to believe (that the Trespass Act No. 6 of 1959 is a dangerous relic of our apartheid heritage), that’s ok with me. You can think what you like; I’m a liberal.

But it does not help people, if you simultaneously try to replace the Act with legislation that goes some way to depriving us – people whose lives and properties might be threatened – from being in a position to defend ourselves and properties. The right to self-defence is ancient and sensible – and probably what our old buddy Immanuel Kant would have called a categorical imperative (“an unconditional moral obligation which is binding in all circumstances and is not dependent on a person's inclination or purpose”).

Is a parent whose child is threatened with violence at the hands of an intruder obliged to wait for the police to arrive before trying to protect his or her child?

What’s more, Mr L, seems a bit odd to me that you argue that the Trespass Act is “irrelevant” to our constitutional democracy but, in the same (bad?) breath, as it were, seek to promulgate legislation which is itself clearly unconstitutional. Because, as you will know, Mr Lamola, one of the main duties of the state is to provide its citizens with “security”.

Back to the ol’ drawing board then, is it? We all certainly hope so.


[i] For example, my dear friend David Bullard, and his wife Jacquie, found themselves in such a situation in March 2007. Having a working panic button and David’s general demeanour (he’s an unbowed not to mention a cheeky cuss, as you know) apparently helped save the day. But for his troubles DB did get shot. And there exist a plethora – and even more – of such incidents which, as we all know, did not end as “happily” for those involved; au contraire.