Immovable Property and the “voetstoots” clause



1. Legal Quotes“Nothing comes easy in life. Even Santa comes with a clause.” [Christmas proverb]“With Congress, every time they make a joke, it’s a law;


1. Legal Quotes“If spending thousands on a law degree and losing my soul in the process isn’t enough commitment to a legal career, I don’t

Collation and Adiation

1. Legal Quotes“Laws are spider webs through which big flies pass and little ones get caught.” [Honore de Balzac] “The more corrupt the state, the

1. Legal Quotes
“The legal system is often a mystery, and we, its priests, preside over rituals baffling to everyday citizens.” [Henry Miller]
“Lawyers are the first refuge of the incompetent.” [Aaron Allston]
“You get reasonable doubt for a reasonable price.” [Criminal law saying]

2. Overheard in Court
Attorney: “What was the first thing your husband said to you when he woke up that morning?” Witness: “He said, ‘Where am I, Cathy?’”
Attorney: “And why did that upset you?” Witness: “My name is Susan.”

3. Amusing quotes
“I’ve had bad luck with both my wives. The first one left me and the second one didn’t.” [Patrick Murray]
“A successful man makes more money than his wife can spend. A successful woman is one who can find such a man.” [Lana Turner]

4. Inspiring quotes
“Action is the foundation key to all success.” [Pablo Picasso]
“No act of kindness, no matter how small, is ever wasted.” [Aesop]
“You can never cross the ocean until you have the courage to lose sight of the shore.” [Christopher Columbus]

5. Soccer World Cup news
A section of the crowd at the Belo Horizonte stadium started chanting sexually explicit obscenities directed at the Brazil players and President Dilma Rousseff during Brazil’s 7-1 humiliation at the hands of Germany in the Soccer World Cup semi-final. “The only good thing (about the result) is I think it will affect President Dilma in the election. But all our politicians are even worse than the team.” [Beth Araujo, 24, a biology student]
Jessica Santos, a 23 year old student, wasn’t too distraught with the result: “The Cup is back in Brazil for the first time is 64 years, so of course we’ll cheer until the end. If Brazil wins, we party, if Brazil loses, we still party. It would have been worse to lose to Argentina in the final.”
“I am glad that the Russian players have failed and, by the grace of God, no longer participate in this homosexual abomination.” [A Russian priest writing in a column that the Russian soccer team, by wearing multi-coloured boots, were supporting the “gay rainbow” during their short stay in Brazil]

6. Sobering thought of the day
One third of all South Africans have mental illnesses – and 75% of them will not get any kind of help [Sunday Times 06/07/14]

7. Immovable Property, the Consumer Protection Act (‘CPA”) and the voetstoots clause
Patent and latent defects: the common law position
Patent means clearly visible defects, (such as a cracked tile), whilst latent defects are not ordinarily visible (such as damp behind a cupboard).
In terms of the common law the Seller was not liable for patent defects (unless the contract specifically placed this obligation on him). The Buyer was afforded an implied warranty that the property sold was free of defects. There were certain remedies available to the Buyer, if this warranty was breached.

The voetstoots clause in a deed of sale then amended the common law position; the Seller sold the property free of any liability for patent and latent defects.
What does voetstoots mean?
It means the property is sold “as you see it”, with all latent and patent defects.
This placed a heavy burden of proof on the Buyer, as the Seller (in a contract containing a voetstoots clause) could only be found liable for a latent defect
• where the Seller was aware of the defect when entering into the agreement of sale, and
• where he intentionally concealed the defect with the intention of misleading the Buyer (Van der Merwe v Meads 1991 (2) SA 1 (A)).

The Consumer Protection Act 68 of 2008 (“the Act”) came into being in April 2011. How does this affect the voetstoots clause?

The Act regulates the relationship between “suppliers” (Sellers) and “consumers” (Buyers). A “supplier” is defined as “any person who supplies goods and services in the ordinary course of business.”
Accordingly, the Act is not applicable to transactions where

  • the transactions are “once-off” transactions, where goods and services are not supplied in the ordinary course of business
  • the consumer is a juristic person (a company or trust) with an annual turnover of more than R2 million.

Because the Act does not cover all transactions (such as private or “once-off” Sellers), the voetstoots clause is still of application in our law.

Where the Act does apply, it provides the consumer with comprehensive warranties, including the implied warranty of quality goods (section 56), in good working order, free of defects, with a choice of a refund, replacement of the defective goods or repair of same.
A Seller of defective goods (where the Act has application) can only escape liability if the consumer was informed of the specific condition of the goods and he expressly accepted the goods, i.e. only if the Buyer “knowingly acted in a manner consistent with accepting goods in (a less than ideal) condition would the implied warranty of quality fall away.

The courts or the legislature will have to clarify the application of section 56 of the Act to immovable property as it would be extremely difficult, costly and impractical to deregister a property or refund the purchase price after transfer into the name of the Buyer.

It is argued that if the Act is applicable, the voetstoots clause should not be included in the agreement of sale as this is in conflict with the implied warranty as contained in section 56 of the Act. Despite this, the voetstoots clause remains in most estate agencies’ offers to purchase.

Practically speaking, estate agents can do one of two things to ensure that the Buyer is adequately protected:

  • they can delete the voetstoots clause and insert a conditional clause in terms of which the offer is subject to the Buyer getting a favourable home inspection report (ordinarily at the Buyer’s cost), or
  • where the voetstoots clause is contained in the agreement, they can request that the Seller, together with the mandate, sign a “property condition report”, in which the Seller acknowledges and accepts the fact that it is his duty and responsibility to disclose all latent defects of which he is aware as well as any other issue regarding the property which may be relevant to the Buyer, and warrants that the defects disclosed (if any) are the only defects to the property.

It is further suggested that estate agents request the Buyer, when making an offer, to initial next to the voetstoots clause, thereby acknowledging it. In this way the agent has clearly advised both parties with as to the condition of the property.

Lastly, the remedies as contained in the Act do not preclude the parties to the agreement from relying on the common law remedies available to them (although it would be simpler to rely on the implied warranty of quality in terms of section 56 of the Act).