C&A Friedlander Attorneys

As a purchaser, you have most likely come across the term “voetstoots”, whether it’s been purchasing a laptop on Gumtree or purchasing a car from Facebook marketplace, but do you really know what the term “voetstoots” actually means?

The voetstoots clause is a phrase derived from Roman-Dutch law that generally allows a seller to sell property “as is”, without any warranty against defects. However, this provision does not excuse the seller from liability for latent defects if certain conditions are met.

Our law recognizes two types of defects when it comes to property transactions, latent defects, and patent defects. Latent defects are “hidden” defects that are not visible or apparent upon reasonable inspection, while patent defects are clearly visible upon reasonable inspection.

Patent defects would include wall cracks, missing tiles, or evident leaks. A latent defect is one that only an expert would be able to identify, such as a faulty pool pump or geyser.

Sellers are generally unaware of the issues caused by latent defects in a property and therefore include a clause in their respective offer to purchase or sale agreements called the “voetstoots clause“. The clause is included to indemnify the seller against defects in the property including all latent defects which may be unbeknownst to the seller. However, if the seller was aware of a latent defect and deliberately concealed this from the purchaser, the purchaser will then have a right of recourse against the seller.

This may beg the question, are there any legal remedies available to you as a buyer having purchased a property where a latent defect becomes apparent after the fact and your seller relies on the voetstoots clause in the sale agreement? The simple answer is, yes.

South African courts have held that the voetstoots clause will not protect the seller if they acted fraudulently or intentionally concealed latent defects. This principle was confirmed in the recent case of Maloka v Vermeulen and Another (2017/4418) [2023] ZAGPPHC in which the court held that sellers who are aware of a latent defect to the property they are selling, are not protected by a voetstoots clause. The Court in this case ordered the sellers to pay an amount of R414 787.77 to the buyer of the property, as they deliberately and fraudulently failed to disclose extensive damp as a latent defect of the property.

There are however various legal remedies available to a buyer, such as:

  1. Non-disclosure and misrepresentation: If the seller was aware of the latent defect, but intentionally concealed or misrepresented the defect, the buyer may have a claim for non-disclosure or misrepresentation, seeking damages or cancellation of the contract;
  2. Breach of warranty: In some cases, the seller may provide express warranties regarding the condition of the property. If the latent defects breach these warranties, the buyer may be entitled to seek remedies under the warranty provisions;
  3. Consumer protection legislation: Depending on the circumstances, buyers may also be protected by consumer protection legislation, such as the Consumer Protection Act, which provides certain rights and remedies for consumers in South Africa.

Please remember that the information provided here is a general overview and not a substitute for legal advice. Consulting with a qualified attorney familiar with South African property law is crucial for addressing specific legal concerns and navigating the complexities of latent defects and voetstoots provisions.

Article by: Keesha Van Schalkwyk

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).