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The absence of approved building plans has been considered a latent defect by South African courts. However, the voetstoots clause may still protect the seller if they were genuinely unaware of this issue and did not deliberately conceal it. If the seller knew the plans were not approved and failed to disclose this, the buyer might have recourse.   

The CPA provides greater protection to buyers in transactions where the seller is acting in the ordinary course of business (e.g., property developers, builders, investors). In these cases, the voetstoots clause is generally not applicable, and there is an implied warranty that the property is free from defects and of good quality. However, for private sales by individual homeowners, the voetstoots clause can still apply, subject to the seller's obligation to not conceal latent defects fraudulently.   

Yes, absolutely. While the disclosure form provides information from the seller's perspective, a professional home inspection offers an independent and expert assessment of the property's condition. It can help identify both patent and potential latent defects that the buyer might miss and can provide crucial information for making an informed decision before committing to the purchase, regardless of the voetstoots clause or the disclosure form.

No. The voetstoots clause does not protect the seller if:

  • The seller knew about a latent defect and deliberately concealed it from the buyer. This is considered fraudulent non-disclosure.   
  • The seller made fraudulent misrepresentations about the condition of the property.   

In such cases, the buyer may have legal recourse against the seller, even with a voetstoots clause in place.

The buyer has a significant responsibility to:

  • Conduct a thorough inspection of the property before signing the Offer to Purchase. This may include moving furniture and looking for signs of potential problems.
  • Consider hiring a professional home inspector to identify any potential latent defects. Making the offer conditional on a satisfactory inspection is advisable.
  • Ask the seller specific questions about the property's condition and request full disclosure of any known issues.
  • Document any visible (patent) defects in the Offer to Purchase and agree with the seller on who will be responsible for repairs, if any.
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Voetstoots Clause

Understanding the Voetstoots Clause in South African Property Law

The term "voetstoots", originating from Roman-Dutch law and literally meaning "testing something by shoving it with one’s foot", has evolved in modern South African legal practice to mean buying something "as is" or "with all faults". This clause is a fundamental concept in South African property law and is commonly included in Agreements of Sale, with significant implications for both buyers and sellers.

While the voetstoots clause offers a degree of protection to sellers, it is not an absolute shield and imposes important responsibilities on buyers to conduct thorough due diligence.

What is the Voetstoots Clause?

In essence, the voetstoots clause stipulates that the buyer purchases the property in its present condition, including any defects it may have, whether visible or hidden. The primary purpose from the seller's perspective is to limit their liability for defects that they were genuinely unaware of at the time of the sale. By including this clause, the seller signals to the buyer that the property is accepted in its current state. For the buyer, the clause serves as a critical reminder that they are responsible for inspecting the property and satisfying themselves as to its condition before finalising the purchase.

Patent vs. Latent Defects

Understanding the two main types of defects is crucial when dealing with a voetstoots sale:

Patent Defects - These are defects that are obvious or easily discoverable upon a reasonable inspection of the property. Examples include visible cracks in walls, broken windows, missing tiles, or leaking taps. Buyers are expected to identify patent defects during their inspection and generally cannot claim against the seller for such defects after the sale if they were apparent. Any agreement regarding the repair of patent defects should be included in the Offer to Purchase.

Latent Defects - These defects are not immediately visible or discoverable during a routine inspection and may only become apparent over time or require expert knowledge to identify. Examples include rising damp concealed by paint, faulty geysers, rusted internal pipes, or hidden structural issues. The voetstoots clause primarily aims to protect sellers from liability for these hidden defects that they were genuinely unaware of.

The Implications of Voetstoots for Buyers and Sellers

For Sellers

The voetstoots clause can offer significant protection against claims for damages related to unknown defects. However, this protection is not absolute. A seller cannot rely on the voetstoots clause to escape liability if they were aware of a defect (especially a latent one) and deliberately concealed it or failed to disclose it to the buyer before the sale was concluded. Such intentional non-disclosure is considered fraudulent and can render the voetstoots clause ineffective. Sellers have a duty to reveal any latent defects they are aware of to the purchaser.

For Buyers

Accepting a property voetstoots means the buyer accepts the risk associated with defects. While patent defects should be noted during inspection and potentially addressed in the sale agreement, latent defects pose a greater risk as they are not easily found. Buyers are strongly encouraged to conduct comprehensive inspections, potentially utilising the services of a qualified home inspector, to identify potential issues before making an offer.

Legal Limitations and Buyer Protection

While rooted in common law, the application of the voetstoots clause in South Africa has been influenced by legislation:

  • The Consumer Protection Act (CPA) - The CPA provides enhanced protection for buyers, ensuring goods are reasonably suitable for their intended purpose and free of defects. However, the CPA generally applies to transactions conducted in the ordinary course of business. This means it typically applies to sales by property developers, builders, or investors, but not usually to a private sale between individual homeowners.
  • The Property Practitioners Act (PPA) - The PPA has introduced a mandatory requirement for sellers to complete and sign a comprehensive property defect disclosure form before the property practitioner (estate agent) can accept a mandate to sell. This form lists known defects and provides transparency to the buyer. This mandatory disclosure significantly enhances buyer protection by creating a formal record of the property's condition as disclosed by the seller. The signed disclosure form forms part of the Offer to Purchase/Sale Agreement.

Buyer's Recourse for Undisclosed Defects

If a buyer discovers a latent defect after the sale and can prove that the seller was aware of the defect and deliberately concealed it or fraudulently failed to disclose it, the buyer may have legal recourse. Case law, such as Le Roux v Zietsman and Another, supports the principle that a seller is deprived of the voetstoots protection in instances of fraudulent non-disclosure.

In such cases, the buyer may have the right to claim damages from the seller (often a reduction in the purchase price equivalent to the cost of repairs) or, in serious instances of fraud, potentially even seek to cancel the sale agreement. However, proving that the seller had knowledge of the defect and deliberately concealed it can be legally challenging, requiring objective evidence.

Protecting Yourself

For Sellers - Always disclose all known defects, no matter how minor they seem. Completing the mandatory PPA disclosure form accurately and honestly is crucial protection against future disputes.
For Buyers - Conduct a thorough inspection of the property yourself. Engage a professional home inspector to identify potential latent defects. Speak to neighbours if possible. Carefully review the seller's mandatory disclosure form. If in doubt about any aspect of the property's condition, seek expert advice before signing the Offer to Purchase.

Conclusion

The voetstoots clause remains a significant aspect of property transactions in South Africa, placing the risk of unknown defects primarily on the buyer. However, it does not protect a seller who acts fraudulently by concealing known defects. The introduction of the mandatory disclosure form under the Property Practitioners Act further strengthens buyer protection by promoting transparency.

Ultimately, a successful and dispute-free property transaction relies on honesty and full disclosure from the seller and diligent inspection and careful consideration from the buyer.

If you are involved in a property transaction and require expert legal advice on the voetstoots clause, patent or latent defects, disclosure obligations, or potential recourse, contact VDM Attorneys today.