Legal Articles

Buying an immovable property is a feeling like no other. Some say it is an overwhelming feeling of serenity, joy, status and security. It should be so, an immovable property is a real asset and it comes as no wonder why legislation such as the Alienation of Land Act 68 of 1981 makes stringent requirements for alienation of immovable property e.g  to the effect that it must always be in writing.

In the words of Thabang, a first-time home owner, “The thrill stole the show, I felt on top of the world. Leisurely sitting in the lounge of my new home, enjoying a cup of my favourite coffee. I rose up and took a few steps back and forth across the room, into the kitchen where my wife stood in awe like a chef who has finally opened her dream restaurant at the corner shop. I took a stroll along the passage and into the main bedroom, just like a walk on Hollywood’s Walk of Fame. As I slowly made my way back across the passage, tragedy hit the fan!”

In a moment of silence, Thabang took a deep breath, then continued.

“As if the roof felt sorry that my coffee was only halfway completed, there was a sudden gush of water, leaking right above my head from the roof and if I had been a second earlier in my stroll, the sudden gush would have made it straight into my cup of coffee!”

Latent and Patent Defects - Consumer Protection Act

The situation that Thabang found himself in is not uncommon, unfortunately. Home buyers often at times find themselves having to put up with defects that they never anticipated when they bought the property. Sometimes it happens that when viewing a property, purchasers are not thorough and take the condition on face value. This comes at a cost sometimes, a little bit of thoroughness would have laid bare issues that could possibly have been dealt with at the time of the purchase. This brings us to the subject of this article, patent and latent defects and the Consumer Protection Act of 2008 (the Act).

Patent defects are those that are apparent to the eye, should a reasonably thorough inspection be done. Latent defects on the other hand, are material defects that are not visible to the eye pursuant to a reasonable inspection.

If a voetstoots clause is included in the Purchase and Sale Agreement, the seller cannot be held liable for latent defects later found on the property unless, the purchaser can prove that at the time of the purchase transaction the seller;

1. was well aware of the latent defects;
2. deliberately did not disclose and/or concealed the defects to the purchaser;
3. with the aim of misrepresenting to and defrauding the purchaser.

The above principle was noted in the case of Odendaal v Ferraris 2009 (4) SA 313 (SCA) where the Court confirmed that, “It is trite that if a buyer hopes to avoid the consequences of a voetstoots sale, he must show not only that the seller knew of the latent defect and did not disclose it, but also that he or she deliberately concealed it with the intention to defraud.” It ought to be noted however, that if an entity sells immovable property in their ordinary course of business, the voetstoots principle does not apply. This is the impact of the Consumer Protection Act, particularly the principle of ‘implied warranty of quality.’ Consequently, where the seller is selling their property once-off (therefore not in the ordinary course of business) the voetstoots clause is applicable if so provided in the agreement with the purchaser.

Inversely, the query as to whether the seller knew of the latent defect and deliberately concealed it with the aim to defraud is a pertinent one, and this principle was confirmed in  Haviside v Heydricks and Another 2014 (1) SA 235 (KZP) where it was held that because at the time of the sale, the seller was not aware that some structures on the property had no building plans, entitles her to rely on the voetstoots clause successfully. However, in Ellis and Another v Cilliers NO and Others 2016 (1) SA 293 (WC), the purchasers managed to prove that the seller was aware of the defects and deliberately did not disclose them. The Court found against the sellers.

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