09 July 2024

This is Part 2 of a five-part series. Law firm STBB hosted a webinar on the topic of ‘caveat emptor’ and the following is the transcript:

…continued from Part 1

Several legal precedents illustrate the nuanced application of the voetstoots clause. For instance, in the case of Oosthuizen v Pretoria City Council, the court ruled that the voetstoots clause did not shield the seller from liability because they were aware of significant defects in the property’s structure. Similarly, in the matter of Land Bank of South Africa v Marais, the court held that the seller could not rely on the voetstoots clause as they had intentionally concealed information about the property’s financial encumbrances.

Moreover, recent legal developments have introduced additional safeguards for buyers, such as mandatory property condition reports. These reports, completed by sellers in transactions facilitated by estate agents, provide prospective buyers with crucial information about known defects or deficiencies in the property. While these reports assist buyers in making informed decisions, they do not substitute the buyer’s obligation to personally inspect the property and verify its condition.

A latent defect, as defined in legal terms, refers to a significant abnormality or impairment that renders the property unfit for its intended purpose and is not detectable through a reasonable inspection by an ordinary person. This objective standard underscores the buyer’s right to seek recourse if a defect substantially impairs the property’s utility and was in existence at the time of the transaction.

From a litigation perspective, proving the existence and impact of a latent defect can be complex and often requires expert testimony and detailed evidence. The defect must materially affect the property’s usability and be demonstrably detrimental to the buyer’s intended use.

Legal precedents illustrate the application of the voetstoots clause in cases where defects significantly impair the property’s utility or render it unfit for its intended purpose. For example, in the case of Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd, defective bricks necessitated reconstruction, leading the court to hold the seller liable for damages due to the property’s unsuitability. Similarly, in Glaston House v ING, undisclosed heritage requirements imposed significant costs on the buyer, leading to successful claims against the seller for non-disclosure.

Continued in Part 3…

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