All too often individuals buy property with the expectation that they have just found their perfect home, only to later realise that there are hidden ‘skeletons’ buried therein just waiting to make an appearance at some point. Sometimes those skeletons rear their heads and bodies soon after the individual takes residence, other times, long after.
Found the skeleton? Whose problem is it?
Upon discovering the skeleton, which is legally referred to as a defect, new homeowners want someone to be held accountable. Their frustrations can be understood as they have spent a substantial amount of money in acquiring their home, only to be met with a situation that requires them to be even more out of pocket. In this instance, who is to be the accountable party? Here is where we need to take into consideration the contract of sale entered into between the buyer and the purchaser, and in particular the ‘voetstoots clause’.
What is the Voetstoots clause?
The term voetstoots, directly translated means ‘foot test’. This is based on sale agreements previously conducted in our law where the test of whether an item satisfied the buyer was through the act of kicking the item in question. Should the item prove to be sturdy, the buyer would be satisfied, and the transaction would take place. This phrase has made its way into our law and in basic terms, deems the seller ‘free of liability’. Therefore, should a voetstoots clause be present in the above situation, in most circumstances the seller cannot be held liable. However, it cannot be said that a seller can never be held accountable in respect of this particular clause and here it is important to note that defects can be present in two forms namely, latent and patent.
Latent and Patent Defects
A patent defect is considered to be a defect that is clearly visible when a reasonable inspection has been performed and the buyer need not make use of an actual inspector. Patent defects would take the form of a crack in the wall or tiles, something that can be relatively easily noticed. If the buyer is not satisfied with the state of the house due to the patent defect and the seller then agrees to fix such defects, this must be stipulated in writing as the purchaser will have no claim against the seller for not mending the respective defect, as the purchaser has no claim against the seller in the case of a patent defect.
A latent defect on the other hand is a defect that is ‘hidden’, something that the eye will not see. Examples in this case would be dampness in the roof or walls, a leaking roof or termites. It is in these circumstances that it is strongly recommended that a thorough inspection be performed on the property prior to the sale. Should it later become apparent to the buyer that a latent defect is present, the seller can be held liable in this instance. It is mainly due to this reason that the voetstoots clause is inserted into the offer to purchase, extinguishing the seller’s liability.
The case of Banda and Another v Van der Spuy and Another (08/5489)  ZAGPJHC 126
The Court in this case held that where a seller had the knowledge of a latent defect being present and concealed this fact from the buyer, the application of the voetstoots clause was limited. However, where the seller fraudulently conceals the fact that a latent defect is present, the voetstoots clause cannot be relied upon at all.
A seller can only rely on the voetstoots clause if the seller was unaware of any presence of a latent defect. The onus is thus on the buyer to prove that the seller knew or should have known that the defect was present, and that the seller fraudulently concealed it.
Therefore, purchasing a property without seeking expert opinion can be considered somewhat of a risk. This is due to the fact that should any defects be discovered after the sale has taken place, it may be the case that the particular defect cannot be claimed for (in other words, the seller will be free of liability). Further, should it be believed that the seller intentionally concealed a latent defect, the process the buyer must institute in order to prove this allegation can be unnecessarily lengthy as well as costly.