Doctoral Degrees (Private Law)

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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.
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    The impact of forensic DNA profiling on gender privacy
    (Stellenbosch : Stellenbosch University, 2022-12) Lynch, Vanessa; Human, Sonia; Heathfield, L. J.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: Forensic DNA profiling used in conjunction with a DNA database is considered a powerful tool in the fight against crime borne out of its ability to link serial offenders, identify who was present on a crime scene, exonerate the innocent as well as match human remains to missing persons. Identification is achieved by the statistical matching of an “unknown” forensic DNA profile to that of a known reference sample, and not on any physical information that can potentially be derived from the DNA. It is questionable then, why the legal definition of a forensic DNA profile states that no physical, medical, or behavioural information may be derived therefrom other than the sex of that person. This study therefore investigates whether biological sex should be considered private information and if the disclosure of the sex in a forensic DNA profile infringes on gender privacy. This was done by examining the purpose of a biological sex marker in forensic casework, interrogating the development and contents of the Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 (the “DNA Act”), exploring the concept of gender privacy and how it relates to the DNA Act, the Constitution of the Republic of South Africa, 1996 (the “Constitution”) and human rights (and the balance thereof in criminal cases), as well as comparing these factors to international human rights instruments and legal systems in other countries. A key finding of this study is that the concept of gender privacy has not been formally defined in national or international law, thus a definition thereof is proposed. It further emerged that there is limited legal and scientific regard for the differences between gender identity and biological sex, as these terms are often used interchangeably. This research accordingly highlights the critical need to use these terms accurately in the forensic setting. This study shows that the knowledge of an individual’s biological sex is not always necessary in forensic criminal cases and argues that disclosing the sex in forensic DNA profiling reports may infringe on that individual's right to gender privacy. It suggests that the protection of a person's gender privacy could be achieved without recourse to the disclosure of the sex of a person in forensic DNA reports, unless in specific (limited) instances when it is necessary for the promotion of justice. This novel revelation has a global impact insofar as re-conceptualising the difference between gender identity and biological sex in the context of forensic science and promotes a deeper understanding of how these scientific, legal and social concepts are so intricately related. Changes to legislation are recommended to provide vulnerable minorities with a right to gender privacy, as an extended right to privacy in the Constitution.
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    Widows, land, property and inheritance rights : an analysis of affirmative action proposals in Botswana's 2015 Land Policy, with a legal comparative dimension
    (Stellenbosch : Stellenbosch University, 2021-03) Raseroka, Refilwe Seodi; Pienaar, Juanita M.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: Denying women, irrespective of their marital status, the right to access and/or inherit land and property through patriarchal customs that support eviction and inheritance grabbing is inimical to the promotion of gender equality, human dignity and Botho/Ubuntu. The denial of property and inheritance rights of widows through amongst other, property grabbing, has been identified as a major problem in Botswana’s 2015 Land Policy, to be resolved by way of affirmative action. In this light this study, the first of its kind in Botswana, undertakes a holistic review and comparative examination of the affirmative action proposals contained in the 2015 Land Policy, with South Africa’s land reform experience as a backdrop. In doing so, the study exposes a complex layering of customary law and patriarchal practices, legislative gaps and constitutional provisions that result in privileging customary law against complaints of discrimination. Combined, the above have major implications for marriage and widowhood, succession and inheritance rights, gender equality, human dignity and the application of Botho/Ubuntu values. Where women are concerned, land, property rights and access to housing, are inevitably negatively affected. Given that the affirmative action proposals apply to widows only, and not to women generally, the constitutionality of said affirmative action proposals is thus further questionable. In light of the complexity involved, the study suggests a spectrum of recommendations, including better or optimal use of existing remedies, as well as urgent policy implementation and the amendment of existing and the promulgation of new legislation on intestate succession, gender equality and human dignity. The amendment of critical constitutional provisions, as well as a general constitutional review are also suggested. The study underlines that more than affirmative action is needed to promote and protect women’s land and property rights generally. Critically, the right to human dignity is underpinned by Botho/Ubuntu values expressed in the adage ‘umuntu ngumuntu ngabantu’ that is, ‘I am because you are' – a value that applies equally to men and women. On this basis human dignity and equality, irrespective of gender or social class, should be actively promoted and all obstacles preventing the equal enjoyment of land and property have to be identified and addressed accordingly. It is in this context that the study has an important role to play.
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    The child's rights to, in and through basic education : an analysis of South Africa's international obligations
    (Stellenbosch : Stellenbosch University, 2021-03) Strohwald, Annemarie; Human, Sonia; Horsten, Debbie; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: The child’s right to basic education is of utmost importance as it not only prepares but enables them to participate in society. The child’s right to basic education also enables the realisation of other human rights and provides the opportunity to rise above one’s circumstances. This dissertation centres on South Africa’s international obligations in relation to the child’s rights to, in and through basic education and whether or not these obligations have been fulfilled. Specific focus is placed on the obligations created by the Convention on the Rights of the Child (“CRC”) as it is regarded as the foundation of international law on the rights of the child and still remains one of the most widely ratified human rights treaties. Additional obligations created by the International Bill of Human Rights and the African Charter on the Rights and Welfare of the Child are also examined in the dissertation. In order to measure whether or not these international obligations have been fulfilled, the model for compliance is introduced. The model embraces a child-centred approach in the two frameworks that make up the model: the normative framework and the practical framework. The normative framework is founded on articles 28 and 29 of the CRC and the practical framework is based on the 4-A scheme. The dissertation proves that the value of the normative and practical frameworks is that while they are complementary and form the model for compliance, they are also essential frameworks independently. Both frameworks are essential components in order to measure international obligations as states must be normatively strong in their recognition and protection of the child’s right to basic education, but it also requires implementation. With the model for compliance clearly established, it is then applied in India and Nigeria in order to gain a comparative perspective. Attention is paid to constitutional and legislative frameworks as well as relevant case law in these two jurisdictions. India and Nigeria’s periodic reports to the CRC Committee and the ACERWC also form part of the analysis and indicate that the concerns identified by these two committees are not only passing comments but should be dealt with in order to meet international obligations and ultimately result in the realisation of the child’s right to education. ivWith the application of the model for compliance in the South African context, it is quite clear that the constitutional framework is unfortunately not mirrored by our current reality. While positive steps have been taken to align legislation and policy with the international standards of the normative framework, the implementation thereof remains a major challenge. The dissertation concludes with final reflections and recommendations on South Africa’s international obligations. The model for compliance as proposed in the dissertation is valuable as it incorporates a normative and practical framework that provides content to dimensions of the right to basic education. Striking a balance in the realisation and interpretation of children’s rights is very important, and the model for compliance attempts to find this balance.
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    The modernisation of trustees' investment functions in South African law through the implementation of an investment rule based on modern portfolio theory
    (Stellenbosch : Stellenbosch University, 2020-12) Van Tonder, Wiaan; De Waal, Marius Johannes; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: Changes in investment management and advances in economics and finance have led to extensive reform of trust investment law in New York, the United Kingdom and New Zealand. The centrepiece of this reform is modern portfolio theory (“MPT”). Today, trustee investing in each of these jurisdictions is governed by an investment rule based on MPT. In contrast, South African trust law has not kept abreast of contemporary changes to trust investment law and, consequently, trustees in South Africa are not judged by an investment rule based on MPT. The purpose of this dissertation is to examine whether trustees’ investment functions in South African law should be modernised through the implementation of an investment rule based on MPT. To this end, the dissertation analyses the development of trustees’ investment standards in South Africa, explains MPT, and compares the theoretical underpinnings of trust investment law as applicable in South Africa vis-à-vis the three foreign jurisdictions mentioned above. The dissertation concludes that trustees and beneficiaries can benefit greatly from modernising trustees’ investment functions and proffers recommendations for reform.