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[2020] ZASCA 60
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Fraai Uitzicht 1798 Farm (Pty) Limited v McCullough and Others (118/2019) [2020] ZASCA 60 (5 June 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 118/2019
In
the matter between:
FRAAI
UITZICHT 1798 FARM (PTY)
LIMITED
APPELLANT
and
RAYMOND MICHAEL
McCULLOUGH
FIRST RESPONDENT
SUSAN MARIE
CASHIN
SECOND RESPONDENT
GRAHAM BLAIR
MACMILLAN
THIRD RESPONDENT
KRANSKOP WYNE (PTY)
LIMITED
FOURTH RESPONDENT
HARRY CECIL
SEFTEL
FIFTH RESPONDENT
THE REGISTRAR OF
DEEDS, CAPE TOWN
SIXTH RESPONDENT
KLAASVOOGDS WATER
USERS ASSOCIATION
SEVENTH RESPONDENT
DEPARTMENT OF
TRANSPORT AND PUBLIC
WORKS, WESTERN
CAPE
EIGHTH RESPONDENT
DEPARTMENT OF
ENVIRONMENTAL AFFAIRS
NINTH RESPONDENT
DEPARTMENT OF WATER
AND SANITATION
TENTH RESPONDENT
Neutral
citation:
Fraai Uitzicht 1798 Farm
(Pty) Limited v McCullough and Others
(118/2019)
[2020] ZASCA 60
(5 June 2020)
Coram:
PETSE DP and SALDULKER, VAN DER MERWE,
NICHOLLS and MBATHA JJA
Heard:
No oral hearing in terms of s 19
(a)
of the Superior Court Act 10 of 2013.
Delivered:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by email, publication on
the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is
deemed to be have been at 9H45 on
5 June 2020.
Summary
:
Rescission of judgment – whether an order granting a right of
way of necessity can be rescinded on the basis of fraud or
justus
error
– insufficient evidence to
prove respondents’ knowledge of fraudulent misrepresentation –
no basis for finding
that court a quo would have granted a different
order had the true facts been known to it – appeal dismissed.
ORDER
On
appeal from:
Western Cape Division of
the High Court (Slinger AJ sitting as court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Nicholls
JA (Petse DP, Saldulker, Van Der Merwe and Mbatha JJA concurring):
[1]
This is an appeal against the decision of a single judge of the
Western Cape Division of the High Court refusing an application
for
the rescission of an order granted by agreement on 2 November 2011.
The sole issue on appeal is under what circumstances a
judgment can
be set aside on the grounds of fraud, alternatively
justus
error
.
[1]
The
appeal is with the leave of the court a quo.
[2]
The appeal concerns the grant of an access road (the disputed road)
in the scenic winelands of the Western Cape. It involves
five
properties colloquially known as Ligspel, The Hope, Kranskop,
Heuningberg and Fraai Uitzicht. The disputed road travels in
close
proximity to the residence and luxury guesthouse which is run on
Fraai Uitzicht. It is only Kranskop that conducts active
farming
operations, a winery and fruit farming. The appellant is Fraai
Uitzicht 1798 Farm (Pty) Limited, the registered owner of
Fraai
Uitzicht. The first and second respondents, Mr R M McCullogh and Ms S
M Cashin are the registered owners of Ligspel. The
third to fifth
respondents, Mr G B MacMillan, Kranskop Wyne (Pty) Ltd and Prof H C
Seftel are the registered owners of The Hope,
Kranskop and
Heuningberg, respectively. The sixth respondent is the Registrar of
Deeds, Cape Town. The seventh respondent, Klaagsvoogds
Water Users
Association is a co-operative established in terms of the
National
Water Act 36 of 1998
. The eighth to tenth respondents are government
departments – Transport and Public Works, Western Cape;
Environmental Affairs;
and Water and Sanitation. No relief is sought
against the sixth to tenth respondents who took no part in the
litigation.
[3]
Ligspel, The Hope and Heuningberg are all ‘landlocked’
whereas Kranskop and Fraai Uitzicht are not. The crux of
the dispute
between the parties is whether it is Kranskop or Fraai Uitzicht that
should allow them access to the outside world
via the public road,
DR1366 (the public road). The three landlocked properties are located
on the western side of the Klaasvoogds
River while Fraai Uitzicht is
on the eastern bank. Kranskop lies to the west and south of the
river. The public road runs roughly
parallel to the Klaasvoogds River
on the eastern side and traverses Fraai Uitzicht. The DR77 is a
gravel road which traverses Kranskop
parallel to the river on its
western bank and runs in a northerly direction until it reaches The
Hope and Ligspel, where it turns
east, travelling along the border
between Ligspel and Kranskop. It then traverses Fraai Uitzicht and
crosses a bridge on Fraai
Uitzicht to join the public road. It is
this portion of the DR77 which runs in an easterly direction
perpendicular to the river
which constitutes the disputed road. The
DR77 in the south is connected to the public road by the DR78 which
runs across Kranskop,
in a similar manner and parallel to the
disputed road further north. Prior to 2011 the landlocked properties
primarily used the
disputed road to gain access to the public road
although, periodically, access was via that portion of the DR77 which
traversed
Kranskop and linked with the public road further south by
crossing the river at a bridge on the DR78 that is located on
Kranskop.
[4]
The matter has its genesis in an urgent application launched by the
first to fourth respondents during September 2011 against
the
appellant after flooding damaged the bridge on the disputed road. The
appellant refused to permit repair thereof. The respondents
sought a
right of way of necessity using the disputed road which traverses
Fraai Uitzicht for approximately 80-100 metres. On 2
November 2011,
and by agreement, the first to third respondents were declared
entitled to use the disputed road by way of a
via
necessitatis
[2]
and
were granted the right to register a notarial servitude. Included in
the order was the right to use a bridge over the Klaasvoogds
River on
Fraai Uitzicht. The first to third respondents were granted access to
repair the bridge at their own cost, which would
be supervised by an
engineer with experience in the field of bridge engineering.
[5]
On 27 November 2017, a little more than six years later, the
appellant sought to rescind that order on the basis that it had
been
obtained by fraud by the first to fourth respondents, alternatively
on the ground of
justus error
on the basis of missing or lost documents, the so-called
instrumentum
noviter repertum
. The appellant further
sought an order that the Registrar of Deeds cancel the notarial deed
of servitude and that the first to
third respondents demolish and
remove the bridge. The only relief sought in this appeal is the
setting aside of the order concerning
the
via
necessitatis
, the rest having been
abandoned by the appellant.
[6]
When the respondents brought the initial application in 2011 it was
stated that Mr T D Smit, on behalf of his father,
Mr M D
Smit, the previous owner of Kranskop, applied for the deproclamation
of that part of DR77 which runs through Kranskop,
stopping short of
the disputed road. The first respondent said that according to Mr T D
Smit the Provincial Roads Department had
erroneously included the
disputed road in the deproclamation order, which nevertheless
continued to be used as a public road. The
fourth respondent, as the
present owner of Kranskop, stated that it had granted the first,
second, third and fifth respondents
access to the DR77 via Kranskop
only as a temporary concession, without any obligation to do so.
Because the potential dust of
vehicular traffic could cause damage to
the nectarine and grape crops, the fourth respondent was considering
withdrawing this concession.
This would result in Ligspel, The Hope
and Heuningberg being landlocked.
[7]
A further complication in the 2011 application was the disappearance
of documentation pertaining to Mr M D Smit’s
application
for the deproclamation of DR77, including the record of the decision
to deproclaim the said road. The first respondent
stated that Mr T D
Smit, confirmed to him that he had never applied for the disputed
road to be deproclaimed. Mr T D Smit
was made aware that the entire
road had been deproclaimed only when he received a letter from the
Department of Transport and Public
Works, Western Cape stating that
it would not consider the reproclamation of DR77. As I shall explain,
the appellant’s case
was that this evidence in the 2011
application was false to the knowledge of the respondents.
[8]
The appellant’s case was based on the discovery of new
documents. Some years after the court order was granted, documents
previously believed to have disappeared came to light. Around the end
of 2015, the appellant’s attorney, Mr Feenstra,
conducted
a deeds office search which established that a notarial deed of
servitude had been registered in 1945 which granted Heuningberg
access to the public road using the DR77 and the DR78. This route was
in a southerly direction traversing Kranskop and crossing
a bridge
further down from the one on Fraai Uitzicht. The deeds office search
further established that Mr M D Smit, the then
owner of both
Kranskop and Heuningberg, in addition to registering a notarial right
of servitude in 1945, agreed that his successors-in-title
would be
entitled to a servitude right of way via Kranskop.
[9]
These discoveries caused Mr Feenstra to doubt the veracity of the
respondents’ claims made in the 2011 application. Attempts
to
trace the missing DR77 file yielded no success so Mr Feenstra
conducted a search at the South African Archives in October 2016.
There he obtained the following documents:
1.
A letter by Mr T D Smit, apparently as
a representative of his father, Mr M D Smit, dated 15 September
1998 to the secretary
of the Divisional Council, Robertson, conveying
his reasons for wanting to deproclaim DR77. These were, inter alia,
that it runs
approximately 6 meters from the residences; that it
results in farmland in the immediate vicinity being rendered useless;
that
it is abused by youngsters racing on the road over weekends; and
that it causes difficulties with irrigation. He mentioned that
there
is another road which links Klaasvoogds east and west, rendering DR77
redundant. Mr T D Smit added that his neighbour
Mr De Witt,
(the previous owner of The Hope) who owned the only other property
along the road, was amenable to the deproclamation
sought. The
appellant contends that the only residences that he could have been
referring to were the houses situated on Ligspel
(where he was living
until 1990) and Kranskop. The alternative road being referred to was
the D78 further south on Kranskop which
linked to the public road
DR1366.
2.
An internal memorandum by the Head of
Roads, Winelands Divisional Council to the secretary of the
Divisional Council, Robertson
dated 20 October 1988, attaching a plan
of the area and the road in question. From this, says the appellant,
it is apparent that
the intention was always to deproclaim the entire
road, including the disputed road.
3.
A proclamation dated November 1989
deproclaiming DR77, including the disputed road.
[10]
A further document on which the appellant relies is a letter written
by Mr T D Smit dated 6 September 2011, addressed
to ‘whom
it may concern’. It was attached as an annexure to the
respondents’ opposing affidavit in the application
for
rescission. In the letter Mr Smit stated that he specifically
excluded the disputed road from his application for deproclamation,
and was most surprised to find out 20 years later that it was no
longer a public access road. He said he stopped short of applying
for
the deproclamation of the disputed road because it would have
deprived other owners of access to DR1366. Further, it was close
to
his house so he was the only user of that section of the road.
[11]
As a result of the discovery of the above four documents the
appellant launched an application for rescission of the judgment
based on fraud, alternatively
justus
error
. On the strength of these
documents it also alleged that there were fraudulent
misrepresentations on the part of the respondents.
These are:
1.
The first respondent had been informed by
Mr T D Smit that the deproclamation of the disputed road
was a mistake by the
relevant roads department and he had never
applied for its deproclamation. This was a blatant untruth as his
letter of 15 September
1988 to the Divisional Council shows.
2.
The suggestion by the first respondent that
he had recently discovered the deproclamation was untrue when viewed
in the light of
Mr T D Smit’s evidence that he had
advised the first respondent long before.
3.
The allegation that the present owners of
Kranskop had permitted use of the alternative route recently and
merely as a temporary
courtesy to the other respondents because the
bridge on the disputed road was damaged as a result of flooding. This
statement was
false as Mr M D Smit was the previous owner of
Kranskop and Ligspel. Because he knew that his actions were the cause
of the
properties being landlocked, he had always provided them
access via Kranskop.
4.
The first respondent failed to disclose
that at the time of launching the application he
was in
possession of a written statement of Mr T D Smit (the
letter of 6 September 2011) that explained how the deproclamation
was
made and that contained a number of material misrepresentations.
[12]
On the basis of the above alleged misrepresentations, the appellant
asserted that Mr Smit had sold Kranskop and Ligspel
with the
full knowledge of the deproclamation of DR77 including the disputed
road. In addition, Kranskop had always provided access
to its
landlocked neighbours. Even if the respondents did not actively
participate in Mr Smit’s fraud, it was, nevertheless,
contended
that he was their own fraudulent witness on whom they positively
relied. The denial by the respondents of the existence
of the
deproclamation documents, led the appellant to the same false
conclusion regarding the deproclamation. The respondents deliberately
withheld Mr T D Smit’s letter of 6 September 2011
as well as the existence of a notarial servitude of
access over
Kranskop. These actions, the appellant contended, amounted to fraud
on the part of the respondents.
[13]
Pursuant to an application for oral evidence during the course of the
rescission application, Mr T D Smit testified on
20 June 2018.
He said that his request for deproclamation stopped short of
including the disputed road. Initially he testified
that the closure
of the entire road was the result of a misunderstanding. He cited
various reasons for excluding the disputed road.
One reason was that
he wanted the council to continue to bear the cost of maintaining the
disputed road which it would only do
if it were a public road. Later
he said he excluded the disputed road because he did not want to
deprive the other owners of access.
He had no explanation for the
contradiction between his letter of 6 September 2011 and
the fact that he had applied to
deproclaim the entire road. In short,
Mr Smit was an unreliable and untruthful witness who lied when he
said the disputed road
had been erroneously included in the
deproclamation.
[14]
While correctly rejecting Mr T D Smit’s evidence, the
court a quo dismissed the rescission application on the
ground that
appellant had failed to make out a case of fraud or
justus
error
.
Relying on decisions of this Court, it held that the test for
rescinding judgments was more stringent in contested proceedings.
[3]
It
also held that the application had not been brought within a
reasonable time. The court found that, notwithstanding the falsity
of
the evidence of Mr T D Smit, it did not follow that the
respondents were aware that Mr T D Smit’s
statements
were untrue when they launched their application in 2011. Their
version was that Mr T D Smit informed them that
the disputed
road was erroneously included in the deproclamation. They believed
him and had no reason to doubt his honesty.
[15]
Although leave to appeal was granted to this Court in respect of the
whole judgment, the reasons stated by the court a quo
in its judgment
on application for leave to appeal were whether it had correctly
dealt with the
instrumentum
noviter repertum
maxim and whether it had misinterpreted
Childerley
Estate Stores v Standard Bank of SA Ltd
.
[4]
[16]
In spite of being a 1924 decision,
Childerley
remains good authority regarding the circumstances under which a
court can grant
restitutio
in integrum
against a judgment. Following
Childerley
our courts have repeatedly stated that a judgment induced by fraud to
which one of the parties was privy, cannot stand.
[5]
It
was held that in order to succeed on this ground there are three
requirements that a plaintiff must prove: (1) the defendant
gave
incorrect evidence at the initial trial; (2) that the defendant did
so fraudulently with the intention to mislead the court;
and (3) that
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.
[6]
[17]
Whilst not calling these requirements into question, the appellant
argued that they have been ‘watered down’ by
this Court
in
Moraitis Investments
(Pty) Ltd and Others v Montic Diary (Pty) Ltd and Others
[7]
and
that the successful litigant need not have committed fraud itself but
merely be a party to the fraud. It is unclear to me how
the
conclusion is reached that the fraud requirements have been watered
down. To justify this submission the appellant seized upon
a phrase
in
Moraitis
that
the fraud only has to be ‘brought home to the successful
party’
[8]
. This phrase is
taken out of context without regard to the preceding sentence of that
judgment where this Court categorically stated
that only when there
is fraud, usually in the form of concealed or perjured evidence to
which the successful litigant was a party,
can a judgment be set
aside. Therefore, in its context, the statement that the fraud must
be ‘brought home to the successful
party’ means nothing
more than that the successful party must have been privy to the
fraud. This Court went on to say that
a wrong judgment as a result of
perjured evidence is insufficient ground for setting aside a
judgment.
[18]
The court a quo cannot be faulted for finding that there was no
evidence to suggest that the respondents were aware of the
falsity of
Mr T D Smit’s statement. Thus, they cannot be said to have
been party to the fraud. Nor can it be said that
Mr T D Smit’s
falsity ought to be ‘brought home’ to the respondents. Mr
T D Smit admitted in evidence
that he gave the first
respondent the letter of 6 September 2011. That the first respondent
took it at face value cannot constitute
fraud. As for the alleged
fraudulent misrepresentations, it was never stated that the first
respondent had ‘recently’
discovered that the entire road
had been deproclaimed. It was the brother of Mr T D Smit, Mr D
Smit, who on 26 November
2010 addressed an email to both the
first respondent and the appellant that his brother had ‘recently
confirmed’ that
during the 1980s he specifically asked that the
disputed road not be closed. The further alleged misrepresentation
was that Mr T D Smit
had always granted access to the
landlocked respondents via Kranskop though the respondents stated
that this was a temporary measure.
This is a fact peculiarly within
the knowledge of the Smit family. None of the present respondents
were owners in 1988 and it was
not denied that the route via Kranskop
had been used previously. The 1945 servitude was referred to in the
surveyor general’s
diagram filed in 1986 which was annexed to
the replying affidavit in the 2011 application. It is not an
undisclosed document that
has recently come light. As regards the
missing proclamation documents, both the respondent and the appellant
searched for them
unsuccessfully. There is no suggestion, nor can
there be, that the respondents played any role in their
disappearance, or were
aware that they might be at odds with what was
told to them by Mr T D Smit about the disputed road.
Accordingly, the
appellant’s relentless search for the
documents which ultimately yielded positive results is not a factor
that can count
against the respondents.
[19]
On these facts no case has been made out for the rescission of the
judgment on the basis of fraud to which the respondents
were party.
In any event, it has not been shown that had the court been aware of
the alleged fraud, it would have come to a different
conclusion than
that agreed upon by the parties. Sight must never be lost that a way
of necessity must take the shortest route
to the public road and that
which causes the least damage to the servient tenement.
[9]
This
is not an inflexible rule
[10]
but
it is clear that the disputed road is by far the shortest route to
the public road and would cause the least damage. Other than
the
allegation that it runs close to a luxury guesthouse on Fraai
Uitzicht there is nothing to indicate that the disputed road
is not
the most convenient access for the landlocked properties. These facts
are immutable and the knowledge that the disputed
road had been
deproclaimed does not change anything.
[20]
What then remains is the question of
justus
error
and whether the appellant has shown an entitlement to rescission of
the order as a result of the four missing documents. The general
principle enunciated in
Childerley
is that non-fraudulent misrepresentation is not a ground for setting
aside a judgment and
justus
error
can be a ground only in rare and exceptional circumstances.
[11]
After
considering Roman and Roman Dutch authorities, De Villiers JP
concluded:
‘
We
arrive at this position then that so far as
justus
error
is concerned default judgments may in some cases be set aside under
the Roman-Dutch Law on the ground of
justus
error
,
and that judgments, whether by default or not, may be set aside in
the seven exceptional cases above-mentioned on the ground of
i
nstrumentum
noviter repertum,
though
evidently some of those cases are nowadays obsolete and
inapplicable. . . . There may be other exceptional
circumstances. But I must say that I know of no such further general
application of the doctrine of
justus
error
to judgments as would entitle the vanquished party to bring an action
to set aside a judgment only on the ground that the Court
gave the
judgment in
error
,
even if such error was just and induced by a non-fraudulent
misrepresentation made by the other party to the case.’
[12]
Without
considering the exceptions described above, this Court subsequently
affirmed this principle in
Moriatis
.
[21]
The appellant’s argument is that the missing documents amount
to one of the exceptions described in
Childerley
.
It submits that the court a quo did not correctly interpret
Childerley
and that the only requirement for
justus
error
on the basis of lost documents is
that the documents must have gone missing through no fault on the
part of the party seeking rescission.
This cannot be. At the very
least the documents should be of such significance that they would
materially alter the outcome of
the case. The missing documents in
this matter cannot be categorised as such. I am unpersuaded that had
the new documents been
placed before the court in the 2011
application, this would have altered the outcome. If there is no
reason to believe that a court
would have come to a different
conclusion on the basis of the fraudulent non-disclosure of the
documents, it is difficult to envisage
a different outcome where the
misrepresentations are non-fraudulent. The landlocked properties
still required access to the public
road and the disputed road
remained the shortest and most convenient right of way, irrespective
of the status of deproclamation.
[22]
The four missing documents upon which the appellant relies do not
qualify as one of the exceptions referred to in
Childerley
.
Nor am I persuaded there was any non-disclosure that can be laid at
the door of the respondents. The 1945 servitude, which was
annexed to
the replying affidavit in the initial application, cannot be said to
have been missing. As regards the proclamation
documents, after an
unsuccessful search by the respondents, the appellant and the
provincial authorities, they were considered
to have been lost. The
letter of 6 September 2011 did nothing more than corroborate what the
first respondent had already been
told by Mr T D Smit,
albeit an untruth, that he did not apply for the deproclamation of
the entire road. The missing
documents cannot lay the basis of one of
those rare and exceptional circumstances where a rescission of
judgment can be justified
on the ground of justus error.
[23]
As regards the delay in bringing the application for rescission, 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.
However, in light of my conclusion that the judgment cannot be set
aside either on the grounds of fraud or
justus
error
, no finding in this regard is
necessary.
[24]
In conclusion, I am of the view that the appellant has not shown that
had the missing documents been available at the time,
the court a quo
would have granted a different judgment. Without evidence of
fraudulent misrepresentation on the part of the respondents,
the
application for the rescission of the judgment is stillborn. The
appeal must accordingly fail.
[25]
In the result I make the following order:
The
appeal is dismissed with costs.
_________________
C H NICHOLLS
JUDGE OF APPEAL
APPEARANCES
For
the appellant: R S Van Riet SC (with him W H Van Staden)
Instructed
by: Roelof Feenstra Incorporated, Stellenbosch
Lovius
Block Attorneys, Bloemfontein
For
the respondents: D W Gess
Instructed
by: M D Visser Attorneys, Robertson
Van
Der Merwe & Sorour Attorneys, Bloemfontein
[1]
Justus
error means justifiable mistake
[2]
Right of way of necessity.
[3]
Moraitis Investments
(Pty) Ltd and Others v Montic Diary (Pty) Ltd and Others
[2017] ZASCA 54; [2017] 3 All SA 485 (SCA); 2017 (5) SA 508 (SCA).
[4]
1924
OPD 163.
[5]
Schierhout
v Union Government
1927 AD 94
at 98.
Rowe
v Rowe
[1997] ZASCA 54
;
1997 (4) SA 160
(SCA);
[1997]
3 All SA 503
(A) at 504
.
Makings
v Makings
1958 (1) SA 338
;
[1958]
1 All SA 510
(A)
at 342H-345A.
[6]
Childerley
at 169.
[7]
Footnote
1 above.
[8]
Ibid
para 12.
[9]
24
Lawsa
2
ed para 560.
[10]
Aventura
Ltd v Jackson NO
2007 (5) SA 497 (SCA).
[11]
Childerley
at 166.
[12]
Childerley
at 168.