Doctoral Degrees (Private Law)

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Browsing Doctoral Degrees (Private Law) by browse.metadata.advisor "Boggenpoel, Z. T."

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    Investigating the role of participation in the upgrading of informal settlements : identifying challenges and opportunities
    (Stellenbosch : Stellenbosch University, 2022-03) Sameera, Mahomedy; Boggenpoel, Zsa-Zsa; Boggenpoel, Z. T.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: The advent of the Constitution of the Republic of South Africa, 1996 was a major milestone for South Africa in terms of its potential to redress the atrocities of colonialism and apartheid. While this has resulted in major legal developments, the consequences of colonialism and apartheid are still present and can be seen in the continuation of vast socio-economic inequalities. One of the major remnants of apartheid is the large number of informal settlements that were established as a result of a combination of factors, which included various race-based planning legislation. Government has shifted its attention from conventional housing programmes, which focused on the incremental provision of subsidised housing, to upgrading existing settlements, specifically focusing on the in situ upgrading of informal settlements. Community participation and deliberation on the process of upgrading, as well as alternatives thereto, are vital. Participatory planning has the potential to provide solutions to social exclusion and to empower citizens. As such, it holds value in addressing issues related to informal settlements and achieving spatial justice. However, concerns relating to the implementation of participatory processes in the upgrading of informal settlements have been raised. Given the importance of participation in relation to upgrading informal settlements, it becomes necessary to place the involvement of the communities affected under the spotlight. It is this notion of participation in the context of upgrading informal settlements that is the focus of this dissertation. In particular, the study investigates the role that participation plays in upgrading informal settlements. This investigation is undertaken by examining the justifications posited for using participation in upgrading informal settlements as well as the criticisms thereof. Furthermore, this dissertation explores the theoretical role that participation plays by looking at various policies and programmes that govern the upgrading of informal settlements in South Africa to determine the extent to which participation features therein. The role that participation plays in practice is also evaluated through an investigation of case law pertaining to upgrading informal settlements. The theoretical and practical roles of participation in upgrading informal settlements are examined to determine whether the participatory processes used in the context of upgrading informal settlements are in line with the theory set out in this dissertation. For purposes of the study, a comparative perspective is useful. Brazil is of particular interest in this respect given that it shares a similar socio-economic climate and political history with South Africa as well as the parallels present in terms of informal settlement growth patterns and the use of participation to remedy this issue. This comparison aims to address challenges experienced in the South African context and to identify opportunities to strengthen the current approach to upgrading informal settlements in South Africa by providing recommendations that can assist with future upgrading projects and with public policy.
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    The regulation of Airbnb : a property law perspective
    (Stellenbosch : Stellenbosch University, 2023-03) Lavita, Gisele Chloe; Boggenpoel, Z. T.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH SUMMARY : Currently, short-term rental operations like Airbnb are not regulated by national legislation in South Africa. This dissertation determines the implications of shortterm rental operations like Airbnb on the relevant South African role-players, namely (a) hosts; (b) guests; (c) neighbours; (d) the tourism industry; (e) the hospitality industry; and (f) the South African Government. The overarching intention of this dissertation is to determine the impact of short-term rental operations on the rights, obligations, and remedies of neighbours within the South African short-term rental context. In this light, this dissertation explores the current legal position of short-term rental operations in South Africa. Furthermore, the legislation applicable to shortterm rentals and the potential challenges of short-term rental operations is explored. Additionally, the potential implications that the Tourism Amendment Bill of 2019 may have on role-players in the short-term rental context is discussed. The study also explores the applicability of landlord-tenant law in the Airbnb short-term rental context. In particular, the research is centered on determining whether Airbnb hosts can be regarded as landlords and whether Airbnb guests can be regarded as tenants. To this end, the Airbnb terms of service are contrasted with the principles of a lease agreement to determine whether the Airbnb host-guest agreement can be regarded as a lease agreement. This exposition indicates the potential rights, obligations and remedies that would be applicable to Airbnb hosts and guests if they amount to landlords and tenants. The dissertation also establishes the potential implications of neighbour law on short-term rental operations in South Africa. Specifically, emphasis is placed on determining whether a neighbour has a nuisance law claim when they experience an interference with the use and enjoyment of their property due to a host’s shortterm rental operations. In this regard, the research considers case law regarding nuisances to determine potential situations where a short-term host’s behaviour could be regarded as posing an unlawful nuisance that is actionable under the common law. This exploration is relevant in determining the factors courts may consider when hearing a nuisance matter in the short-term rental context. Consequently, this dissertation considers the neighbour law remedies that may be available to neighbours whose property rights are infringed by a short-term host’s rental operations. In this regard, the requirements of the relevant neighbour law remedies are discussed to determine what a neighbour must prove to rely on the various remedies available. Furthermore, this dissertation investigates whether the neighbour of a short-term rental host may have a section 25(1) claim for an unconstitutional arbitrary deprivation of property. The purpose of this investigation is to determine the remedies available to neighbours of short-term hosts who experience property interferences due to short-term rental operations. Finally, this dissertation explores three regulatory approaches to short-term rental operations in South Africa, namely: (a) enacting national legislation to govern short-term rental operations; (b) passing municipal by-laws to allow local municipalities to govern short-term rental operations based on the circumstances relevant to short-term rentals in the specific municipality; and (c) leaving short-term rental operations unregulated and allowing contract law to govern the relationship between host and guest. In this regard, case studies of the regulation of Airbnb in London and Berlin are conducted. These case studies examine the consequences of London’s lenient yet clear regulation of short-term rentals in comparison to Berlin’s more stringent regulation of short-term rentals. Based on the case studies conducted and the exploration of the three potential regulatory approaches, this dissertation proposes that the South African Government enacts national legislation regulating short-term rental operations. It is proposed that the relevant national legislation should provide a framework of regulations that are implemented by municipalities based on the local circumstances of each municipality. In this regard, recommendations for the regulation of short-term rental operations are provided.