Freedom of movement laws… 
WHEN THE RIGHT TO OBSERVE CROSSES A LINE

Is it legal for an individual to sit in front of my property for hours on end, watching my every move?

Rustenburg – An inquiry from a concerned Platinum Weekly reader brought to light a scenario that many find unsettling: the balance between the freedom of movement laws and the right to privacy in one’s own home.

The reader’s experience is not unique: “Recently, I encountered a troubling situation. A suspicious-looking man sat across the street from my home, spending over four hours staring at my property. This occurred just days after a break-in at my neighbour’s place. 

“So, I reached out to the police for assistance, only to be informed that, under the Freedom of Movement law, they were unable to intervene. I then contacted my Community Policing Forum (CPF), who said the same thing. However, they offered to check on the guy. True to their word, CPF members approached the man, inquiring about his well-being — an action for which I was profoundly grateful. Although their presence didn’t result in his removal, it served as a subtle reminder that he was being watched. 

Such incidents raise critical questions about the boundaries of the Freedom of Movement law and its implications for personal security and privacy.

To gain clarity on this matter, we consulted with Van Velden-Duffey Inc, a firm well-versed in the nuances of South African law.

Freedom of Movement: a closer look

The Freedom of Movement and residence is contained in chapter 2, section 21 of the Bill of Rights and provides that:

• Everyone has the right to freedom of movement.
• Everyone has the right to leave the Republic.
• Every citizen has the right to enter, to remain in and reside in the Republic.
• Everyone has the right to a passport.

This means that the Constitution provides persons within South Africa the right to enjoy freedom of movement and any limitation of this right must be justifiable in terms of section 36 of the Constitution.

Where a person is sitting outside of your residence, he or she would not be in contravention of any law, and as such, cannot be merely removed.

The position in our country is that all the land outside a person’s home, beyond the property boundary, belongs to the municipality. Unless in instances where they are granted permission by the municipality to for example, reserve parking in the case of a business.
This is regulated by municipal by-laws; it may however constitute a crime if the person standing outside your house is conducting themselves in a manner that constitutes harassment or a nuisance. Such unreasonable interference may be interpreted as contravening the particular by-law relating to public open spaces and the person may be found guilty of an offence.

In instances where you are of the opinion that a person outside your premises is harassing you or causing a nuisance, my advice would be to approach an attorney to establish a way forward in that regard. You could also approach your local police station and lay charges against such a person. 

Written by
Van Velden-Duffey Inc, Gofaona Mogari