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

This case concerned five properties in the scenic winelands of the Western Cape. Three properties (Ligspel, The Hope and Heuningberg) were landlocked, while Kranskop and Fraai Uitzicht were not. The dispute centered on access to a public road (DR1366). In September 2011, after flooding damaged a bridge on a disputed road (DR77) that traversed Fraai Uitzicht, the first to fourth respondents launched an urgent application seeking a right of way of necessity. On 2 November 2011, by agreement, the court granted the first to third respondents a via necessitatis (right of way of necessity) and the right to register a notarial servitude using the disputed road which traversed Fraai Uitzicht for approximately 80-100 metres. The order included the right to repair a bridge at their own cost. Six years later, in November 2017, the appellant (Fraai Uitzicht) sought to rescind the 2011 order, alleging it was obtained by fraud based on newly discovered documents. The documents included: a 1945 notarial servitude granting access via Kranskop; a letter from Mr T D Smit dated 15 September 1988 applying to deproclaim DR77; an internal memorandum showing intention to deproclaim the entire road; and a November 1989 proclamation deproclaiming DR77 including the disputed road. The appellant alleged that Mr T D Smit's evidence that the disputed road was erroneously included in the deproclamation was false, and that the respondents were party to this fraud.

• Under what circumstances can a judgment be set aside on the grounds of fraud?
• What are the requirements to prove fraud as a basis for rescission of a judgment?
• Can a judgment be set aside where a witness gave false evidence but the successful litigant was not aware of the falsity?
• Under what circumstances can a judgment be set aside on the grounds of justus error (justifiable mistake)?
• Does the discovery of missing documents (instrumentum noviter repertum) constitute an exceptional circumstance justifying rescission on the basis of justus error?
• What is the test for determining whether newly discovered evidence would have materially altered the outcome of the case?

The appeal was dismissed with costs.

To succeed in setting aside a judgment on the basis of fraud, three requirements must be established: (1) the defendant gave incorrect evidence at the initial trial; (2) the defendant did so fraudulently with the intention to mislead the court; and (3) such false evidence diverged from the true facts to such an extent that the court, had it been aware thereof, would have given a different judgment. The successful litigant must have been privy to the fraud - it is insufficient that a witness gave perjured evidence if the successful party was genuinely unaware of its falsity. Non-fraudulent misrepresentation is not a ground for setting aside a judgment. Justus error (justifiable mistake) can be a ground for rescission only in rare and exceptional circumstances. The discovery of missing documents (instrumentum noviter repertum) does not automatically justify rescission; the documents must be of such significance that they would have materially altered the outcome of the case. Where the fundamental facts remain unchanged despite the discovery of new documents, and the outcome would have been the same had those documents been available, there is no basis for rescission on grounds of either fraud or justus error.

While the court noted that it is difficult to conceive of a situation where the setting aside of a judgment on the grounds of fraud by the successful litigant would be denied on the basis that the application was not brought timeously, no definitive finding on delay was necessary in light of the court's conclusion that the judgment could not be set aside on grounds of fraud or justus error. The court also made observations about the practical considerations in determining rights of way of necessity, noting that such servitudes must take the shortest route to the public road and cause the least damage to the servient tenement, though this is not an inflexible rule. The court commented that other than the allegation that the disputed road runs close to a luxury guesthouse on Fraai Uitzicht, there was nothing to indicate that the disputed road was not the most convenient access for the landlocked properties.

This case clarifies and confirms the stringent requirements for rescinding judgments on the grounds of fraud or justus error in South African law. It emphasizes that: (1) for fraud to justify rescission, the successful litigant must have been privy to the fraud - it is insufficient that a witness gave false evidence if the successful party was unaware of the falsity; (2) the principle that non-fraudulent misrepresentation is not a ground for setting aside a judgment remains good law; (3) the discovery of missing documents (instrumentum noviter repertum) only justifies rescission in rare and exceptional circumstances where the documents would have materially altered the outcome; (4) the test is not merely whether documents were missing through no fault of the party seeking rescission, but whether they would have led to a different judgment. The case serves as an important reminder of the finality principle in litigation and the high threshold required to overturn final judgments, even in contested proceedings. It also confirms the principles governing rights of way of necessity, particularly that such servitudes should take the shortest route to the public road and cause the least damage to the servient tenement.