Doctoral Degrees (Private Law)

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    Not just hot air : soft law and the protection of climate change-induced displaced children’s needs and rights
    (Stellenbosch : Stellenbosch University, 2024-03) Fox, Bryony Elizabeth; Human, Sonia; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: The reality of the Climate Crisis has manifested in devastating impacts, including an increasing prevalence of cross-border climate change-induced displacement (CCID), a growing concern recognised by the Intergovernmental Panel on Climate Change. However, at present, CCID persons are not considered a recognised group in need of international protection. Further, due to the nature of the Climate Crisis and its impacts, they are unlikely to be able to rely on traditional protection regimes, such as the 1951 Refugee Convention. Children are particularly vulnerable to risks associated with CCID. Once they have crossed a border, they may be treated as irregular migrants and subjected to conditions of detention or return to a state of origin, often violating their rights. This dissertation aims to assess the extent to which various soft law instruments aid in protecting the needs and rights of CCID children who have crossed an international border during mobility and in seeking durable solutions. The research methodology involves a comprehensive analysis of soft law, which governs aspects of CCID and covers various areas of international law, including inter alia international refugee law, environmental law, and climate change law. The analysis is conducted using a children’s rights-based approach (CRBA). A CRBA recognises that children are rights holders, states are duty bearers, and international instruments such as the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) act as standard-setting instruments. This dissertation examines the multifaceted risks faced by CCID children during mobility, impacting their needs and rights as found within the CRC and ACRWC. The analysis finds that the soft law does aid states in respecting, protecting, and fulfilling the rights of CCID children. However, there is no single instrument which comprehensively addresses the rights of CCID children. Thus, the analysis underscores the challenge of addressing these rights within a fragmented legal landscape and discourages the creation of additional soft law instruments. The recommendations propose a strategic integration of specific questions on states’ implementation of CCID rights within the Committee on the Rights of the Child (CRC Committee) reporting process, aligning with the simplified reporting procedure starting in 2024 and advocating for similar measures in ACRWC periodic reports. It is also recommended that CCID children make use of individual communication procedures to hold states accountable for rights violations, drawing on, for example, the recent CRC Committee General Comment 26 for guidance. Furthermore, in order to mitigate fragmentation, collaboration is urged among various follow-up and review mechanisms, emphasising a comprehensive CRBA in reports and action plans linked to existing soft law instruments. In the context of durable solutions, this dissertation finds that CCID children face risks associated with durable solutions on two levels. The first is that traditional durable solutions offered to displaced persons tend to be child-blind, allowing children to fall between the cracks. The second is that due to the nature of climate change, the traditional durable solutions are unlikely to address the needs and rights of CCID children. This dissertation found that these risks are not addressed by the soft law instruments, and thus, these instruments do not adequately aid states in respecting, protecting, and fulfilling the rights of children in the context of durable solutions. Recommendations include integrating CCID children's rights with regard to durable solutions into state reports to the CRC Committee and African Committee of Experts on the Rights and Welfare of the Child, recognising the inadequacy of traditional solutions in the context of climate change and the need for innovative, climate adaptation solutions for CCID children and their rights.
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    Towards transformative justice for un-coerced adult female sex workers in South Africa : an approach that speaks to the multi-layered and multi-faceted realities of women in South Africa
    (Stellenbosch : Stellenbosch University, 2024-03) Lourens, Marna; Human, C. S.; Coetzee, Azille; Human, Sonia; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: This study provides insight into the lived experiences of sex workers in South Africa and the legal and policy frameworks that shape their lives, with the ultimate goal of contributing to a more just and equitable society. This was done through an intersectional analysis of the position of the sex worker in South Africa within a constitutional dispensation. The transition to democracy prompted a significant and radical paradigm shift in South African law. It required the transformation of patterns of legal, social, cultural, and economic disadvantage, which was intended to serve all of those who have previously been excluded or situated on the margins. It is questionable, then, why sex workers suffer human rights abuses with high incidences of sexual and other violence, unemployment, and lack of access to legal and health services. A key finding of this study is that the criminal law framework cannot respect the sex worker as an autonomous individual while simultaneously addressing her vulnerability within institutionalised frameworks of power. Far from being something obvious and an expression of natural law, the regulation and criminalisation of sex work have always been ambiguous and contested, serving larger agendas of colonial, apartheid and post-apartheid governments. Informed by rigid gender identities and expectational norms, various agendas of punitive control have entrenched an ideological legal framework that excludes sex workers from constitutional protection. Because sex workers remain outside the realm of constitutional protection, they have been unable to improve their lives. This research, therefore, highlights the critical need to reframe the lens through which sex work is approached in South Africa. The study shows that to understand and act against social injustice, the life worlds of marginalised people should be the starting point of any academic and other enquiries. Intersectionality is a lens that recognises complex relationships and the differing coercive circumstances within which people exercise agency. It supports a view of justice that does not deny the reality of exploitation in sex workers’ lived experiences but rather draws attention to the role of wider social structures in its reproduction. Insofar as it moves the discourse beyond punishment and retribution (the criminal law as justice), intersectionality is a lens that recognises the relevance of lived experience, social location, embodiment and contexts of power and knowledge-making.
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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.