Airbnb in the City of Cape Town: How could the Regulation of Short-Term Rental in Cape Town affect Human Rights?

by | Jan 19, 2022 | SLR, SLR V32 I3

Airbnb in the City of Cape Town: How could the Regulation of Short-Term Rental in Cape Town affect Human Rights?

Author: Sarah Fick

ISSN: 1996-2193
Affiliations: LLB LLM PhD, Senior Lecturer, University of the Western Cape
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 455 – 481
https://doi.org/10.47348/SLR/2021/i3a5

Abstract

Short-term home rental in Cape Town, like Airbnb, may create tension between the interests of several affected parties. To cater for the interests of these affected parties, the state may choose to regulate the short-term rental housing market. Whichever regulatory route it will take, the state should take into account the interests of those affected. More importantly, it must consider how its regulations may affect the human rights of these interested parties. This contribution considers the way in which regulation may affect the human rights of those parties identified as (arguably) the primary parties affected by Airbnb. These are the property rights of the property owners wanting to place their properties on Airbnb and the housing rights of those wanting to live in the city. Considering how these regulations may affect the rights of these interested parties can guide lawmakers (both local – with a focus on the City of Cape Town – and national) when drafting regulations to ensure that they comply with their duty to respect, protect, promote and fulfil the rights in the Bill of Rights.

Evictions During the COVID-19 Pandemic and Beyond [Discussion of South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC)]

by | Jan 19, 2022 | SLR, SLR V32 I3

Evictions During the COVID-19 Pandemic and Beyond [Discussion of South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC)]

Authors: ZT Boggenpoel and S Mahomedy

ISSN: 1996-2193
Affiliations: BComm LLD, Professor of Public Law, Stellenbosch University, Chair of the South African Research Chair in Property Law, Stellenbosch University; LLB LLM, LLD Candidate and Research Intern at the South African Research Chair in Property Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 482 – 495
https://doi.org/10.47348/SLR/2021/i3a6

Abstract

While race-based laws have been formally removed from the South African legal system and various measures for redress are now available, the after-effects of colonialism and apartheid are still visibly present in the spatial inequalities and lack of access to housing throughout the country. Closely linked to this is the issue of unlawful occupation and evictions. Under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”), which aims to give effect to section 26(3) of the Constitution of the Republic of South Africa, 1996, evictions without a court order are prohibited. However, during COVID-19, there was a drastic increase in unlawful occupations and evictions, and particularly without a court order. This is extremely concerning given the devastating impact that evictions have, as well as the increased risk they pose to those affected in terms of COVID-19. In response to the pandemic, various regulations and guidelines were put in place by the government in line with the Disaster Management Act 57 of 2002. These regulations placed various limitations on many facets of life and rights, such as property rights and the right to evict, and included an initial moratorium on evictions. This leads to further questions relating to the increase in evictions, even with the initial moratorium. As such, this case note aims to re-evaluate evictions in the light of the recent judgment in South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC), which raised numerous questions and concerns relating to governmental responses to evictions during COVID-19. In particular, the note investigates the extent to which the regulations that pertain to evictions differ from the approach to evictions under PIE. The note then turns to the issue of occupied versus unoccupied structures – a distinction that has increasingly been used by government officials in an attempt to circumvent the need for a court order. Finally, this note will make recommendations in the light of the various issues discussed.

Potential Constitutional Concerns regarding Employees’ Rights during Business Rescue Proceedings

by | Jan 19, 2022 | SLR, SLR V32 I3

Potential Constitutional Concerns regarding Employees’ Rights during Business Rescue Proceedings

Authors: Clement Marumoagae and Siphethile Phiri

ISSN: 1996-2193
Affiliations: Associate Professor, University of the Witwatersrand, School of Law Visiting Associate Professor, National University of Lesotho, Faculty of Law; LLB LLM LLD Candidate Teaching Assistant, University of Venda, Department of Private Law
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 496 – 517
https://doi.org/10.47348/SLR/2021/i3a7

Abstract

The South African business rescue procedure has not yet been adequately tested against the Constitution of the Republic of South Africa, 1996. In particular, the extent to which company stakeholders could raise constitutional rights to litigate against companies placed under business rescue is not clear. This contribution discusses the apparent tension between the ideal of providing business rescue practitioners the breathing space to attempt to rescue companies and the desire of the employees of those companies to litigate against such companies when they are placed under business rescue. It appears that generally, courts seem to be of the view that the moratorium established in chapter six of the Companies Act 71 of 2008  is broad enough to include employment-related disputes and that during the  period of business rescue, employees are not permitted to litigate against their employer companies. Nevertheless, it would also appear that courts have not adequately considered how this moratorium should be balanced with employees’ constitutional rights, like the right to fair labour practices, social security and equality, and whether the moratorium legitimately and reasonably prohibits employees from protecting these rights by approaching  courts during business rescue proceedings. It is argued in this contribution that either the courts or the legislature should provide clarity on the matter.

Regulating Substantively Unfair Terms in Online Contracts

by | Jan 19, 2022 | SLR, SLR V32 I3

Regulating Substantively Unfair Terms in Online Contracts

Author: Sanmarie van Deventer

ISSN: 1996-2193
Affiliations: BComm LLB LLM LLD, Temporary Lecturer, Department of Private Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 518 – 542
https://doi.org/10.47348/SLR/2021/i3a8

Abstract

The possible risks that standard form contracts pose to consumers have long been recognised. This article focuses on the impact that the online environment has on these risks, and it questions whether existing rules sufficiently protect consumers against unfair or abusive provisions in online contracts (ie standard form contracts appearing in electronic form). Several clauses which are affected by the unique characteristics of the online environment are identified and analysed. These include clauses relating to the use of personal information and consumer-generated content, clauses affected by the ongoing nature of online contracts (such as unilateral variation and unilateral termination clauses) and clauses affected by the global nature of online contracts (such as choice-of-law and choice-of-forum clauses). It is concluded that existing measures of control are inadequate to ensure proper protection for online consumers. It may allow suppliers to rely on generally unread terms included in online contracts to exploit consumer data or content, to modify terms without proper notice, to cause loss to consumers through unilateral termination, and to deprive consumers of effective enforcement measures or legal remedies. Proposals are then made for legislative provisions that aim to prevent suppliers from abusing online terms.

Die Vrugte van Beswaarde Bates by die Bereddering van ‘n Insolvente Boedel

by | Jan 19, 2022 | SLR, SLR V32 I3

Die Vrugte van Beswaarde Bates by die Bereddering van ‘n Insolvente Boedel

Author: AL Stander

ISSN: 1996-2193
Affiliations: BIuris LLM LLD, Professor, Fakulteit Regte, Noordwes Universiteit, Potchefstroomkampus
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 543 – 558
https://doi.org/10.47348/SLR/2021/i3a9

Abstract

If the executor of a deceased estate finds that the estate is insolvent and the creditors of the deceased estate have not instructed him to sequestrate the estate in terms of the Insolvency Act 24 of 1936, he may choose to administer the estate as an insolvent deceased estate in terms of section 34 of the Administration of Estates Act 66 of 1965. Section 34(7) of this Act requires an executor to submit liquidation and distribution accounts of the estate to the Master within certain specified periods of time and section 34(7)(b) prescribes that these accounts must provide for the distribution of the proceeds according to the preferred order prescribed by the Insolvency Act. Section 95(1) of the Insolvency Act provides that “the proceeds of any property which was subject to a special mortgage, landlord’s legal hypothec, pledge or right of retention, after deduction therefrom of the costs mentioned in subsection (1) of section 89, shall be applied in satisfying the claims secured by the said property”. The question that this contribution seeks to answer is whether “the proceeds of any property” in section 95(1) includes the amount(s) paid by a tenant as rent after the date of sequestration, but before the property was sold by the trustee or liquidator? According to Singer NO v The Master 1996 2 SA 133(A), this phrase includes interest derived from the deposit of the purchase price of the property. However, the Appellate Division also accepted that “the proceeds of any property” were not limited to the purchase price of the property, but included fruits derived after the date of sequestration such as rent paid by a tenant before the property was sold or interest paid by the purchaser. It is recommended in this contribution that rental income that accrues prior to the realisation of the secured property should not be treated in the same way as, for example, rental income and occupational interest that accrues after realisation of the property. This recommendation is based on the interpretation of section 95(1) of the Insolvency Act, in conjunction with section 83 and section 95(2).

Developing Criteria for the Identification of Suitable Agricultural Land for Expropriation and Redistribution in South Africa: Lessons Learnt from Namibia

by | Sep 19, 2021 | SLR, SLR V32 I2

Developing Criteria for the Identification of Suitable Agricultural Land for Expropriation and Redistribution in South Africa: Lessons Learnt from Namibia

Author: Tina Kotzé

ISSN: 1996-2193
Affiliations: BA (Law) LLB LLM LLD, Research fellow at the South African Research Chair in Property Law, Department of Public Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 185 – 214
https://doi.org/10.47348/SLR/2021/i2a1

Abstract

There has been a plethora of policy initiatives and academic debate focusing on how land should be acquired in South Africa for redistribution purposes and, if expropriation is to take place, at what value or for how much compensation. However, little attention has been paid to how land will be identified for acquisition in general, and expropriation specifically, for redistribution purposes. Therefore, the aim of this article is not to explore which approach is more suitable for specifically acquiring agricultural land, but rather how agricultural land should be identified prior to being acquired, specifically through expropriation, for redistribution purposes. To this end, the approach and criteria for identifying suitable agricultural land for expropriation as provided for in Namibia’s regulations to the Agricultural (Commercial) Land Reform Act 6 of 1995 may prove to be useful in formulating criteria for the South African context. The article concludes with the recommendation that for the sake of a transparent, procedurally fair and effective redistribution process in South Africa, objective, nonarbitrary criteria for identifying suitable agricultural land for redistribution purposes should be developed and provided for in regulations or policy. The development of criteria for identifying suitable agricultural land will provide the South African government with a useful tool in selecting agricultural land for acquisition and redistribution. The use of the criteria will not only contribute to a transparent, non-arbitrary and procedurally fair selection process, but will also assist landowners in determining the likelihood of their land being earmarked for redistribution.