In order to protect the economically-efficient use of land and the unitary character of ownership, South African property law contains a number of legal principles and rules that regulate the creation of limited real rights. One of these "anti-fragmentation" rules is that a valid servitude may be established only if it satisfies the principle of passivity (servitus in faciendo consistere non potest).
The principle of passivity provides that a servitude may not impose a positive obligation on the owner of the servient tenement to do something. Instead, it may only impose a negative obligation not to do something or to tolerate something (that is, the exercise of the entitlements of the servitude by the servitude holder) (see Van der Walt The law of servitudes (2016) 170-171).
Unfortunately, this principle appears to have been overlooked by the Supreme Court of Appeal in Bondev Midrand (Pty) Ltd v Pulling; Bondev Midrand (Pry) Ltd v Ramokgopa 2017 6 SA 373 (SCA) (the two appeals were heard together). In both of these cases, the court held that an obligation to build a residential home within a specified time period could be classified as a limited real right and thus registered against the land in question without first considering whether such an obligation infringed the principle of passivity.
The purpose of this case note is to analyse the Supreme Court of Appeal's decision to classify the obligation to build a residential home within a specified time as a limited real right in light of the complex and contested role the principle of publicity plays in South Africa's law of servitudes.