The South African Doctrine of Notice: a comparative law perspective

The doctrine of notice was received into South African law in Cohen v Shires, Mchattie and King (1881-1884) 1 SAR TS 41 by reference to a 17th century Dutch decision and English equity.The reception of the polar star of equity has led to doctrinal problems and differing views as to requirements for the operation of the doctrine ever since. This is illustrated in the decision of the Supreme Court of Appeal in Meridian Bay Restaurant (Pty) Ltd v Mitchell 2011 (4) SA 1 (SCA). The Court mentioned fraud and equity as the doctrinal basis but also accepted the view that the doctrine is an anomaly which does not fit into the principles of either the law of delict or property law.The Court required actual notice (or dolus eventualis) and wrongfulness for the operation of the doctrine of notice. In the following discussion of the decision it is argued that for the operation of the doctrine it should be required that: (a) a prior personal right aimed at the acquisition of a real right existed; (b) a holder of a subsequent personal right was actually aware or foresaw the possibility of the existence of the prior personal right; and (c) the holder of the real right nonetheless infringed upon the prior personal right by concluding a subsequent contract and obtaining registration of the real right in the deeds office.