Browsing by Author "Maass, Sue-Mari"

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    The case in favour of substantive tenure reform in the landlord-tenant framework : the Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele; City of Johannesburg Metropolitan Municipality v Blue Moonlight
    (Juta Law, 2011-01) Maass, Sue-Mari; Van Der Walt, A. J.
    The tenure reform programme, which forms part of the land reform programme, consists of two strategies. These are, first, the transformation of weak tenure through the implementation of dedicated structural reforms, and secondly, the development of general anti-eviction provisions that prevent arbitrary forced removals, which were traditionally associated with apartheid land law (A J van der Walt Constitutional Property Law (2005) 309-10).
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    Rental housing as adequate housing
    (Juta Law Publishing, 2011-09) Maass, Sue-Mari
    Recently the government has emphasised the importance of rental housing as a form of housing accessible to the urban poor. The current landlord-tenant regime promotes equal bargaining power and contract-based tenure (occupation) rights for tenants. It is questionable whether this free-market approach would provide satisfactory tenure security for the urban poor. In terms of section 26 of the Constitution, the state must be actively involved in the provision of housing and the state must assist the most vulnerable who face homelessness. Public rental housing might be a suitable housing option for vulnerable occupiers because the state can regulate, assess and control the market to the extent that it is involved in the provision thereof. The success of such a form of housing depends on the enactment of effective legislation that affords tenure security while also being context-sensitive to the personal needs of the individual households. The purpose of the Community Residential Units Programme is to introduce a formal public rental sector. However, the tenure rights of these public sector tenants would be similar to those of private and social sector tenants, which is problematic since these tenancies are based on contract. Legislation has not been promulgated to give effect to this programme. If the aim of the government is to provide housing in the form of rental housing, the question is how such housing would constitute adequate housing. Security of tenure is a key component of the right to adequate housing. One of the challenges in urban land reform is to create statutory forms of tenure that would include substantive tenure security, although such protection should be extended and applied to a diverse variety of tenure options. Security of tenure implies uninterrupted legal occupation devoid of uncertainty regarding termination of such legal occupation.
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    Tenure security in urban rental housing
    (Stellenbosch : University of Stellenbosch, 2010-12) Maass, Sue-Mari; Van der Walt, A. J.; University of Stellenbosch. Faculty of Law. Department of Public Law.
    ABSTRACT ENGLISH: The dissertation considers the tenure rights of urban residential tenants in the post-1994 constitutional dispensation. The 1996 Constitution mandates tenure reform in two instances. Firstly, section 25(6) (read with section 25(9)) mandates the legislature to enact legislation that would provide legally secure tenure rights for a person or community whose tenure of land is insecure as a result of past racially discriminatory laws or practices. This form of tenure reform is race-based. Secondly, section 26(3) mandates the courts to consider all relevant circumstances during eviction proceedings. In terms of this provision the court can refuse to grant the eviction order on the basis of the occupier's socio-economic weakness, which is a more general form of class-related tenure reform. The Constitution also ensures the right to have access to adequate housing, while the legislature must introduce measures that would give effect to this right (sections 26(1) and 26(2)). To determine whether the current landlord-tenant regime in South Africa is able to provide tenants with secure occupation rights and access to rental housing, it is compared to landlord-tenant regimes in pre-1994 South Africa, the United Kingdom, New York State and Germany. The landlord-tenant regimes are considered in light of changing socio-economic circumstances where the state had to assist households during housing shortages. The dissertation assesses the efficiency of landlord-tenant law, combined with regulatory measures that ensure substantive tenure rights and rent restrictions, as a form of tenure that could help alleviate housing shortages and initiate a new landlord-tenant regime for South Africa that would give effect to the Constitution. The dissertation concludes that the current substantive tenure rights of urban residential tenants are largely based on the common law, which is associated with weak tenure security. The landlord-tenant laws, namely the Rental Housing Act 50 of 1999 and the Social Housing Act 16 of 2008, fail to provide urban residential tenants with substantive tenure rights. The legislature has failed to enact a law that gives effect to section 25(6) in the landlord-tenant framework. The legislature did enact the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) in order to give effect to section 26(3). Recently the courts interpreted PIE to provide marginalized tenants with substantive tenure protection during eviction proceedings. However, to give effect to section 25(6) legislation should grant residential tenants substantive tenure rights that are legally secure prior to eviction. The legislature enacted the Rental Housing Act and the Social Housing Act to give effect to the right to housing (section 26 of the Constitution) in the landlord-tenant framework. These laws fail to promote access to rental housing as a form of tenure that could help alleviate housing shortages.