to buy or sell property would invariably include a voetstoots clause
and this is the common basis of property transactions in South
recent Court decision of Waller and Another vs Pienaar and Another
303(C) has elucidated certain aspects of the voetstoots clause.
meant by the term "voetstoots"?
means that the property is sold "as is" or "as it
stands". Accordingly the purchaser purchases the property with all
the patent and latent defects. Simply put patent defects refer to defects
that are visible to the naked eye and don't require expert inspection, whereas
latent defects refer to defects that one would not normally discover with a
normal inspection e.g. a leaking roof.
purchaser is always liable for
patent defects unless the contract provides otherwise. The seller
however must disclose all latent defects or become responsible for
them. Once disclosed and accepted the buyer takes reponsibility
for latent defects as well. Van der
Merwe vs Meads 1991 (2) SA 1(A)
of Van der Merwe vs Meads is the leading authority in respect of the
"voetstoots" clause. The case sets out the main criteria when
analyzing the Seller's liability in respect of property sold voetstoots and
states that a Seller is deprived of protection under the said clause in the
the Seller was aware of the defects in the property when entering into the
b) The Seller
(dolo malo) intentionally conceals the existence of the defect with the
intention of defrauding the Purchaser.
the test in Van Der Merwe vs Meads placed a difficult burden of proof on the
Purchaser as the Purchaser would have to prove that the Seller had knowledge of
the defect together with the intention to defraud the Purchaser to succeed in
depriving the Seller of his defence under the voetstoots clause. In the
past, the second leg of this intention to defraud test was often easily negated
by the Seller.
Another vs Pienaar and Another (6) SA 303C
case of Waller and Another vs Pienaar and Another deals with the second leg of
the test. Whilst upholding the principals laid down in the Van der Merwe
vs Meads, the Cape Town High Court in this case has now clarified the
principles and this case will assist Purchasers in the future.
in question arose from allegations by the Purchasers that the property in
question had latent defects which the Sellers failed to disclose to them at the
time of the sale. The court analyzed whether the Sellers could rely
on the voetstoots clause as a defence and what the Purchasers would have to
prove in order to succeed. The alleged defects were poorly compacted
filling, a vertical crack at the north gable wall, settlement of entrances
screen wall, poor quality of external face brick panels, the failure of
internal walls and the dwelling had been constructed above an uncontrolled fill
site which fill site was of such a nature that necessary steps had to be taken
to provide adequate footings and suitable founding depths to avoid any
construction on the property from cracking and this had not been done with the
building in question.
held that in order for the Purchasers to be successful in their claim they had
to prove that:-
defects were latent;
Sellers were aware of the defects at the time of sale;
Sellers had a duty to disclose the existence of the defects to the Purchasers
at the time of sale;
fraudulently concealed the existence of the defects, thereby inducing the
contract, alternatively the Sellers fraudulently misrepresented that there were
defects as pleaded latent?
summed up the definition of latent defects to mean not
"apparent" or a defect that is not reasonable capable of
perception. The court held that the defects were in fact latent
especially because the defects would not be visible to the untrained
eye. The Sellers had argued that the crack to the north gable wall was
"visible" and therefore not "latent". The court took
into account that the property was inspected at night time and held that the
Purchasers would not have seen same and since the Sellers did not disclose this
to the Purchasers they could not reasonably be expected to be aware of same,
thus qualifying the defect as latent.
Sellers aware of the alleged defects at the time of the sale and if so were
they under a duty to disclose these to the Plaintiff?
answering this question the Court reviewed the case of Knight vs Trollip:-
think it resolves itself to this, viz that here the seller could be held liable
only in respect of defects of which he knew at the time of the making of the
contract, being defects of which the purchaser did not then know. In
respect of those defects, the seller may be held liable where he has designedly
concealed their existence from the purchaser, or where he has craftily
refrained from informing the purchaser of their existence. In such
circumstances, his liability is contingent on his having behaved in a way which
amounts to a fraud on the purchaser, and it would thus seem to follow that, in
order that the purchaser may make him liable for such defects, the purchaser
must show directly or by inference, that the seller actually knew. In
general, ignorance due to mere negligence or ineptitude is not, in such a case
equivalent to fraud."
Sellers were clearly aware of the defects as they admitted to knowing that the
north gable wall was cracked and also admitted that extensive work had to be
done to cover up cracks on the internal walls. The Court further quoted
from the case of Forsdicks vs Young where the learned Judge stated that:-
words "designedly" and craftily" imply that there must be some
element of the transaction beyond mere knowledge and non-disclosure. The
learned Judge further states that it may be that the Seller's awareness of the
Purchaser's ignorance would supply that element."
pointed out that the Purchaser asked no question regarding certain of the
defects and had to have purchased the property ignorant of the same.
Sellers fraudulently conceal the defects and/or falsely misrepresent to the
Purchasers that there was no defects with the intention of inducing them to buy
the property under the circumstances where the Sellers had a duty to disclose
the alleged defects.
when answering this question ultimately decided that "silence in this
instance" arising from the Sellers' knowledge of the facts and the
deliberate decision not to reveal them, was clearly fraudulent.
Accordingly the answer to this question was in the affirmative.
concluded that the contract was to be cancelled and the Purchasers were to be
placed in the same position they were prior to entering into the
under certain circumstances silence on the part of the Sellers will be
tantamount to fraud and this will assist a Purchaser in succeeding in a claim
and deprive the Seller of his defence that the property was sold
voetstoots. In light of the above it is evident that the Court will not
come to the assistance of a "dishonest" Seller.
Some further clarifying points : 1)
As a Seller, if you are aware of defects - state them upfront so as to
protect yourself. Most buyers are quite accepting of minor faults and
expect them to exist - in fact you reassure them by being transparent.
DO NOT try and hide major defects such as roof leaks or fondation
problems. Rather negotiate price around them than find yourself sued
later 2) Buyers of new properties from developers are covered by
means of insurance paid to the NHBRC - get a copy of the certificate
before signing or ensure the receipt of such certificate forms part of
your contract. In most cases, the bank will ask for this anyway as a
condition of granting the bond: 3) We at Property Network
automatically have our sellers complete and sign a Seller Declaration
regarding the condition of the property and a copy of this is provided
to the purchaser. In this way, the seller is protected as he has fully
disclosed all issues and the buyer is re-assured by the seller's
transparency 4) Regardless of any disclosure made by the seller or the agent, it remains the buyers responsibility to properly inspect the property, obtain deeds office information etc 5)
While much hype has centered around the new Consumer Protection Act, it
will probably have no relevance to normal private property transactions
and only apply to developers. The reason for this is that the Act
states that it applies to "any transation in the normal course of business"
For the average man in the street, selling their home is NOT part of
their normal course of business. This comment is based on current legal
counsel but until the matter is actually tested in court, it can not be
said with absolute finality.