Fraai Uitzzicht 1798 Farm (Pty) Limited v McCullough and Others

The appellant, Fraai Uitzicht 1798 Farm (Pty) Limited, owned a farm traversed by a disputed access road leading to a public road. Several neighbouring properties (Ligspel, The Hope and Heuningberg) were landlocked and historically used this road to access the public road. In 2011, following flood damage to a bridge on the disputed road and the appellant’s refusal to allow repairs, the respondents obtained a consent order granting them a right of way of necessity (via necessitatis) over Fraai Uitzicht, including the right to repair and use the bridge. More than six years later, the appellant sought rescission of that order, alleging it had been obtained by fraud or alternatively by justus error, based on newly discovered archival and deeds office documents relating to the deproclamation of a road (DR77) and an old notarial servitude via a different route across another property (Kranskop). The appellant contended that the respondents relied on false representations concerning the deproclamation and access routes.

The appeal was dismissed with costs, and the High Court’s refusal to rescind the 2011 consent order granting a right of way of necessity was upheld.

The case reaffirms the strict and narrow grounds on which South African courts will rescind final judgments, particularly in contested matters. It clarifies that fraud must be attributable to the successful litigant and that perjured evidence by a third party, without knowledge of the litigant, is insufficient. The judgment also restates the limited scope of justus error and instrumentum noviter repertum as bases for rescission, and confirms established principles governing rights of way of necessity.