Airbnb hosts and guests be warned: changes in the Regulations issued in terms of section 27(2) of the Disaster Management Act 57 of 2002 may put a mark on your criminal record. In a nutshell, the Regulations issued by the Minister of Cooperative Governance and Traditional Affairs expressly prohibit Airbnbs from being open to the public, except foreign guests unable to return home, and contravening this provision is a criminal offence.
Restaurants, bars and casinos are not the only places forced to close over the nationwide lockdown. The hospitality and entertainment industry have been hit hard by these restrictions. Interestingly, and perhaps more relevant, is the impacts on Airbnbs which are operated by private individuals often dependent on that income.
Previously under Alert Level 5, places and premises which were to be closed to the public included “hotels, lodges and guest houses” (Annexure D). Whether Airbnb’s are included in this list was unclear. However, under Alert Level 4, the Regulations cleared up all doubt by specifically including “bed and breakfasts, airbnbs’, timeshare facilities and resorts” (Regulation 24(2)(f)) in the listed category.
Curiously, the Alert Level 3 Regulations, removed “airbnbs” from this list of hotels, lodges and bed and breakfasts, and included a separate list of “private homes for paid leisure accommodation” (Regulation 39(2)(h)). It seems Airbnbs would now fall under this other category.
Why is this important?
This is significant as the Regulations expressly stipulate that it is an offence to contravene this particular sub-regulation.
Alert Level 3 Regulations, in sub-regulation 48(2) states that:
“(2) … any person who fails to comply with or contravenes the provisions of regulations … 39(1) and 39(2)… commits an offence and is, on conviction, liable to a fine or to imprisonment for a period not exceeding six months or to both such fine and imprisonment.”
In other words, Airbnbs have been treated the same as restaurants and nightclubs that have been forced to close down during the nationwide lockdown, and private business owners’ risk being guilty of an offence by allowing the public to access their premises.
On 30 April 2020, during the transition from Alert Level 5 to Alert Level 4, Airbnb and B&B guests, who perhaps were unable to return home before Alert Level 5 was imposed, were afforded a one-week grace period in the beginning of Alert Level 4 between 1 May and 7 May 2020 to return home(Government Gazette Notice No. 482). All guests were able to move between districts, metropolitans and even provinces, without the need for a permit.
On 14 May 2020, an additional period of movement was provided to allow for persons who had a permit to relocate to their new place of residence (Government Gazette No. 43320).
Sub-regulation 3 stated that a person must:
“(i) obtain a permit to travel across provincial, metropolitan or district boundaries from the head of court or a person designated by him or her, or the station commander of a police station or a person designated by him or her. The permit must correspond with Form 1 of these Directions;
(ii) indicate the persons who are part of the household who will be required to move; and
(iii) have in his or her possession the relevant lease agreements indicating the fact of expiry of the old lease or the date of commencement of the new lease, or the proof of purchase of residence and occupation date, or occupation date, or the transfer documents attesting to the change of ownership of property, or a domestic violence order, or proof of change or new occupation of business premises”
These periods of once-off movement mentioned above will seemingly thwart any argument that a South African was perhaps prohibited from leaving an Airbnb and was entitled to remain on holiday for the duration of the national lockdown. This is simply not the case. South African holiday goers are prohibited from continuing their vacations during the nationwide lockdown, under these above mentioned Regulations, and must return to their residence, or risk imprisonment or a fine.
The next essential question is who is liable for this offence: the Airbnb host or the Airbnb guest? This isn’t clear. The Regulations state “any person” who contravenes the Regulations is guilty, however, it does not assist in answering whether it is one or the other, or both. The implications for an Airbnb host, or a hotel, whose South African guests simply refuse to leave and thus cannot close their doors, may be that the host is equally guilty of committing this offence.
Our advice has been to inform these guests that their stay is an offence under these Regulations and to attempt to limit any form of liability on their part. It is yet to be seen how the courts will deal with hosts who have acted reasonably and diligently in attempting to close their doors in order to comply with the law.