A 61-year-old unemployed woman has turned to the Supreme Court of Appeal (SCA) in an attempt to appeal against her conviction on a charge of trespassing in her own home after the High Court in Pretoria dismissed her appeal.
The Socio-Economic Rights Institute of SA filed an application for special leave to appeal with the SCA on behalf of Rachel Zwane of Ennerdale, in southwestern Johannesburg, after two high court judges last year turned down her appeal against her trespass conviction.
Zwane, her two daughters, and four grandchildren still live in the small Ennerdale home she bought in 2001 but which her bank sold on auction to a property speculator when she fell into arrears with her mortgage payments after losing her job with a management consulting firm in 2008.
She says in court papers that her house was put on auction without her knowledge and she was also not aware that the new owner had obtained an eviction order until the sheriff arrived and put her and her family out on the street.
She said one of her grandchildren had climbed through a broken window and opened the door from the inside, allowing them to move back inside, because they were desperate and had nowhere else to go.
Zwane was tried for housebreaking and trespassing three years later and was convicted of trespassing and fined R1 000 or 12 months’ imprisonment, which was conditionally suspended.
The high court rejected her appeal, finding she had no right to be on the property and had been offered R50 000 to vacate the house, but asked her grandchild to break a window to get back inside.
She denied being offered money or asking her grandchild to break-in.
Zwane maintains the Ennerdale house was still hers, even though she was no longer the owner, and that she should not have been criminalised for moving back because section 26 of the constitution and illegal eviction legislation decriminalised the unlawful occupation of land for residential purposes.
She argues that the Trespass Act wrongfully exposed people who like her were too poor to defend themselves against summary eviction from their homes, to criminal sanction if they remained where they were because they had nowhere else to go.
“I shouldn’t be criminalised for taking the only practical course open to me: staying where I am until a reasonable alternative becomes available,” Zwane said.