It is common practice to include a voetstoots clause in a sale agreement, whether for movable or immovable property. Often sellers are under the wrong impression that this clause is a blanket indemnity against anything that is wrong with the sale item. On the other hand, purchasers don’t realise their duty to thoroughly inspect the property for any patent defects to make an informed decision when negotiating a sale agreement.

The Principle Of Voetstoots

As a legal principle, the origins of this common law practice can be traced back to ancient Roman times, and was introduced to the Roman Dutch Law system we use in South Africa and was called ‘voetstoots’, meaning literally delivery “with the shove of the foot”.

The voetstoots clause is a provision in an agreement which stipulates that the purchaser buys the property from the seller as it stands and thereby indemnifying the seller against claims for damages in respect of any defects on the property, whether patent or latent. Patent defects are those defects that are visible, whereas latent defects are hidden and not discoverable through reasonable inspection. 

The accepted legal principle is that only if the seller was aware of a latent defect and deliberately concealed or failed to disclose it with the intention to defraud the purchaser, can a seller not rely on the voetstoots clause. This places a high onus of proof on the purchaser should they allege that there was fraudulent non-disclosure on the part of the seller, as the purchaser must allege and prove that the seller:

(a) was aware of the latent defect when the contract was concluded;

(b) deliberately concealed the defect;

(c) bore a duty to disclose the defect; and

(d) failed so to disclose.

If a latent defect is discovered by a purchaser and the seller acted honestly, the seller will remain entitled to rely on the voetstoots clause as indemnity against any damages due to the latent defect.

GORTZEN AND ANOTHER V MOOLMAN (A3022-2021) [2024] ZAGPJHC 185 (28 FEBRUARY 2024)

This principle that sellers cannot use a voetstoots clause to avoid disclosing known latent defects in a property was recently upheld in the Johannesburg High Court. The facts of this matter provided for a good example of how this is applied practically.

In this matter, Ms Moolman purchased a property from the Gortzens, who were going through a divorce and decided to sell the property. Ms Gortzen remained at the property and undertook some superficial repairs in preparation for the sale, primarily by patching and refilling cracks and marks in the paint, and re-painting.

The agreement of sale included a voetstoots clause, as well as a defects disclosure form, which stated that the seller confirmed that there are no latent defects in any of the items listed on the form, unless disclosed by placing a cross in the relevant block next to it. None of the items in the disclosure list was checked, including the listed item “dampness in walls/ floors”.

After, when Ms Moolman started doing her own planning for renovations to the property, she discovered a big damp issue. She successfully claimed damages in the Magistrates Court for the damages relating to the damp issue, and the Gortzens were directed to pay R244 855,00 plus interest, as well as the legal costs for the matter.

The Gortzens appealed to the Johannesburg High Court, but failed.

Experts were used to determine what the extent of the damp issue was, and it was found that it qualified as a defect because it affected the use and value of the property. It was determined, on a balance of probabilities, that Ms Gortzen had known of the damp and had deliberately concealed it during the sale. While fraud is not lightly imputed, it may nevertheless be inferred when such inference is supported by the objective facts revealed by the evidence. Ms Gortzen spent R41 747,09 on “beautifying” the property, and receipts for the work done revealed that one drum of paint and 24 kilograms of Polyfilla were purchased for the required repairs. The Gortzens failed to disclose the damp issues in the disclosure form, or raise their existence with the estate agent. The court was satisfied that this was sufficient to establish dolo malo (an intention to defraud), since where a seller recklessly tells a half-truth or knows the facts, but does not reveal them because he or she has not bothered to consider their significance, this may also amount to fraud.

Importance Of Disclosure And Inspection For Defects

Navigating the intricacies of proving a seller’s intent and awareness of latent defects during a property transaction can be challenging. To address this, a common practice has emerged wherein a reasonable and thorough inspection of the property is done and the parties complete a comprehensive disclosure form detailing any defects present on the property. Through this process, the seller formally declares that the items listed in the disclosure form represent a complete and accurate account of any known issues. This document serves as a crucial reference point, providing assurance to all parties involved. Should a dispute arise due to latent defects, the disclosure form stands as a reliable source of information, offering clarity and facilitating resolution.

When The Seller’s Business Is Selling Property

In terms of the Consumer Protection Act, the voetstoots clause will not be applicable to a property transaction where the seller is selling the property in the ordinary course of their business. This will typically be applicable to developers, builders and investors.

The case of Gortzen and Another v Moolman serves as a poignant reminder of the critical importance of both disclosure and thorough inspection in property transactions. Upholding the principle that sellers cannot use a voetstoots clause to evade disclosing known latent defects, the Johannesburg High Court decision reaffirms the significance of transparency and integrity in such agreements. As parties navigate the complexities of property transactions, adherence to diligent inspection practices and comprehensive disclosure forms not only fosters trust but also ensures fair resolution in the event of disputes.