Legal Articles

Latent Defects and Voetstoots Clause

As was seen in the case of Haviside v Heydricks, buyers are clearly at risk when purchasing a property under the voetstoots clause. 

The law of contract principle which was put in place in 2008 during the case of Odendaal v Ferraris provided that if the seller was unable to obtain statutory approval for building alterations on the property, then this would constitute as a latent defect.

However, if these latent defects were not willfully concealed then the seller is protected by the provisions of the voetstoots clause. 

This clause will not be applicable in the event that by not having these statutory authorisations the property will be incapable of fulfilling the purpose it was intended for when originally purchased.

In recent times sellers have started utilising the voetstoots clause more frequently during sales agreements.

Voetstoots clause frequent usage

It has become ever more important for buyers to be aware of the different aspects of the clause and how it could affect them. 

This aside, the high crime rate in South Africa coupled with the amount of people who are not educated enough to fully understand all the legal aspects in sales agreements means that more and more people are at risk. 

The courts should ultimately be striving to simplify the law so that the general populace can understand it. 

This will then help to reduce such individuals from falling victim to criminal activities which could come about from the principles of the voetstoots clause.

Generally, a contractual agreement for the purchasing of something will include a voetstoots clause which means that the buyer purchases something “as it is”. Thus, the seller will not be held liable if the buyer finds a latent defect after the transaction has been completed.

Latent Defects in Property 

A latent defect is not visible upon careful inspection of the thing being sold. This is usually a point that is argued frequently by parties as to the interpretation of what is classified as one. 

It is however left to the buyer to prove that the seller knew of the latent defect but dishonestly concealed it. 

This is truly an unfortunate scenario to be as it almost always ends up being the buyer’s word against the seller’s and naturally the party at fault will not admit otherwise to escape facing legal recourse.

It only gets more difficult for the purchaser if the seller doesn’t sell the property to them in the ordinary course of business.

This would result in the buyer forfeiting the provisions of the Consumer Protection Act which would otherwise have served as a source of relief. 

Which would prove to be serious in the event of a problem being discovered with the building that was purchased. 

With no assistance being provided to obtain legal recompense from the seller, the problem will then have to be fixed at the buyer's expense.

The Law of Contract 

Unfortunately, the core principles which make up the law of contract are flawed in that they do not allow the Courts to disregard aspects of it in the events of such terms being unreasonable or unfair.

However, in line with the constitutional values of the country, the Courts can develop the terms of the Law of Contract.

Looking at the judgement made with regards to the case of Haviside v Heydricks, the seller will only be protected by the voetstoots clause if he/she were proven to be unaware of the latent defect and did not intentionally try concealing it from the buyer. 

The seller will not be protected by the provisions of this clause in the event that the defect does not comply with the statutory requirements or if the defect will result in the thing bought not being able to be used for the purpose that it was purchased. 

In the end, caution should always be exercised during a purchase if the seller sells something “as it is”. The likelihood of something being at fault with it is high. 

Van Deventer & Van Deventer Incorporated - property lawyers Sandton

Click on the link read more on the Voetstoots clause.

Do not put yourself at risk by not understanding properly the terms of the offer to purchase contract. Contact us to check your documentation before signing.