Contracts for the sale of residential properties in South Africa usually contain what is commonly known as a "Voetstoots clause". This implies that a Purchaser purchases a property "as it is". The Seller’s liability is excluded in respect of all defects in the property of which he or she was genuinely ignorant up to and at the time of sale. A Seller will furthermore not be held liable for patent (clearly visible) "defects".
The legal implications of the Consumer Protection Act 68 of 2008 on a "Voetstoots" sale will be discussed at a later stage but suffice it to say that irrespective of the Act, a private Seller (in this instance a person who does not buy and sell properties in the course of his business) is still protected by the "Voetstoots clause".
Should a Purchaser wish to avoid the consequences of a property purchased "Voetstoots" he or she will have to show that:
- The Seller was aware of the alleged defects and whether the defects were in fact latent at the time of sale
- That there was a duty on the Seller to disclose the alleged defects at the time of sale
- That the Seller deliberately concealed the defects with the intention to defraud, alternatively that the Seller fraudulently misrepresented that there were no defects
It also needs to be established that the defects either destroy or impair the usefulness of the property sold for the purpose for which it has been sold or for which it is commonly used. The defect must be of a material nature, not only for the specific Purchaser but for everyone. The fact that the Purchaser was not aware of the defect(s) need to be of such a nature that it influenced the Purchaser’s decision to purchase the property, alternatively the purchase price he was willing to pay for the property.
We suggest that Purchasers inspect every detail of a property they intend to purchase, alternatively employ a qualified inspector to do this on their behalf and for a Seller and/or Estate Agent to complete a comprehensive checklist on the current state of the property. The checklist is to be signed by both Sellers and Purchasers to prevent any misunderstandings and to possible future claims due to defects.
Please note: this article is of a general nature and is not to be utilised or quoted as legal advice. We do not accept any liability for any errors or omissions nor for possible loss or damage arising from reliance on the information contained in this article. Should you require further or more detailed information, kindly contact your legal advisor.
Dibley v Furter 1951(4)(SA 73 (C)
Waller and Another v Pienaar and Another 2004(6) SA 303(C)
Cape Agulhas Hotel CC v Liesbeek Motors (Pty) Ltd (1479/09)  ZAWCHC 27 (6 March 2015)