Browsing by Author "Ngwenyama, Lerato Rudolph"
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- ItemA common standard of habitability? A comparison between tenants, usufructuaries and occupiers in South African law(Stellenbosch : Stellenbosch University, 2021-03) Ngwenyama, Lerato Rudolph; Boggenpoel, Zsa-Zsa; Stellenbosch University. Faculty of Law. Dept. of Public Law.ENGLISH ABSTRACT: The purpose of this dissertation is to explore whether there is a common (or minimum) standard of habitability between tenants, usufructuaries and occupiers in South African law, and crucially to determine whether a common standard of habitability for these categories of inhabitants in South African law can be derived from the Constitution of the Republic of South Africa, 1996 (“Constitution”). The dissertation aims to also investigate whether the obligation to ensure such a standard of habitability for dwellings in all three categories of inhabitants rests on the owner, the state, or the occupant of the dwelling. To determine whether dwellings are habitable, the dissertation considered the meaning of “habitability” in the context of each type of inhabitant. In the context of tenants, the dissertation found that habitability in terms of the common law is essentially based on the premise that the dwelling to be leased must be in a condition that is reasonably fit for the purpose for which it was rented. However, the common- law fit for the purpose requirement will change to habitability when the Rental Housing Amendment Act 35 of 2014 (“RHAA”) comes into effect. In terms of the RHAA, the habitability requirement implies that the dwelling must be safe and suitable to live in. Furthermore, the dwelling must offer the tenant adequate space, safeguard him or her against the elements and other threats to health, assure the tenant, his household and visitors physical safety, and the dwelling must be structurally sound. In the context of usufructuaries, a dwelling is habitable if it is fit for human habitation. This means that the dwelling must be free from defects and suitable for occupation. In the context of occupiers, habitability is read into constitutional rights such as adequate housing, security of tenure and human dignity. In this regard, a dwelling is habitable for occupiers (in terms of the Extension of Security of Tenure Act 62 of 1997 (“ESTA”)) if occupiers reside in adequate housing that provides secure tenure and accords with standards of human dignity. Concerning the question, on whom the obligation rests to ensure habitability, the dissertation found that in the context of tenants and usufructuaries the obligation to ensure that the property is habitable rests on the owner of the property. Concerning occupiers, it is not clear who must ensure the habitability of the dwelling. It is argued that the obligation to ensure that the property is habitable should primarily be on the owner. This is because the owner is enjoined by section 25(6) of the Constitution through ESTA to accommodate an occupier on his or her property. As such, an owner who permits an occupier to use the property as accommodation incurs an obligation to ensure that the dwelling is habitable. However, where it is unreasonable for the landowner to ensure habitability, for instance, due to financial hardship or lack of resources, the state should be called upon to ensure that occupiers live in habitable conditions. The dissertation concludes that there is currently no common standard of habitability across all three categories. This is because the categories of comparison are so individual that requiring a common standard will not work in all three contexts. However, it is argued that the Constitution forms the minimum standard that eventually forms the baseline in all the categories. This is because the Constitution arguably applies in all categories of comparison. As such, there should, at the very least, be some standard of habitability, which is informed by the Constitution and should be complied with in each individual category of inhabitant.