"Protecting Home Buyers: Understanding South African Law on Selling Properties with Defects"

Posted by SAPAC Reporter on

I am selling my property

Selling a property with defects can be a tricky situation, especially if the seller is unaware of any latent defects in the property. In South Africa, the voetstoots clause is often used in property transactions to protect the seller, but it has its limitations.


According to the voetstoots clause, the buyer purchases the property in its current condition, which means that the seller is not liable for any defects that the buyer may discover after the sale. However, if the seller is aware of any defects in the property and fails to disclose them, the voetstoots clause does not provide protection.


It's important to note that there are two types of property defects – latent and patent. A latent defect is not easily noticeable during a reasonable inspection of the property, while a patent defect is visible and should be noticed during a reasonable inspection. The purchaser has a duty to acquaint themselves with the condition of the property during the purchase process and cannot later claim that they did not see any patent defects.

Recent Court Cases 

A recent court case, Maloka v Vermeulen and Another (2017/4418) [2023] ZAGPPHC 13, confirmed that sellers who are aware of latent defects are not protected by the voetstoots clause. In the case, the plaintiff purchased a property with a damp problem that affected the bedrooms, kitchen, dining room, and other parts of the property. The plaintiff was unaware of the issue during the initial viewing of the property and only discovered it after the purchase. The sellers denied any knowledge of the problem and claimed that the property was sold "voetstoots".

With Expert Witnesses

An expert witness testified that the damp problem was caused by incorrect design and construction of the property and that the sellers must have known about the issue. The court found that the sellers' failure to disclose the issue was equivalent to fraudulent non-disclosure, and they were ordered to pay just under R415,000 to the purchaser.

The Highlights of the Court Case

This case highlights the importance of sellers disclosing any known latent defects to potential buyers. While the voetstoots clause can offer some protection to sellers, it has its limitations, and sellers can still be held liable if they fail to disclose any known defects. Buyers should also take steps to ensure that they are aware of any patent defects before purchasing a property.

Source: Buildcon Solutions

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