Skip to main content

Definition: Voetstoets literally means “tested with the foot”. It originated from the early Dutch farm settlers in the Cape and has become a legal term in South African law. The farmers would purchase second-hand equipment from each other, such as ox wagons or carts. The prospective purchaser would investigate the item for sale by kicking its frame to test its sturdiness. If satisfied, the transaction went ahead and the seller was not liable if the equipment was faulty. In South Africa, someone can sell something “as it is”, or “without liability” as long as they include a voetstoets clause.

Before we look at the applicability of the voetstoets clause, we need to understand the difference between patent defects and latent defects.

Patent defects are clearly visible upon reasonable inspection. No expert inspection is required. For example: a crack in a wall or window. It is advisable for patent defects to be mentioned in the offer to purchase and if the owner agrees to fix them, this should be clearly stipulated. The purchaser has no recourse for patent defects, other than to decide not to proceed with the purchase.

Latent defects are ones which are hidden and are not easily picked up on a superficial inspection. For example: a faulty geyser, damp behind furniture or paint, or a leaking roof. The seller is responsible for all latent defects in the property for 3 years from the date of sale of the property. For this reason, properties are sold “voetstoets”. The voetstoets clause covers the seller against defects, including latent defects.

The effect of the Consumer Protection Act on the Voetstoets Clause:

When the Consumer Protection Act (hereinafter referred to as the “CPA”) came into force on 1 April 2011, there was much debate as to whether it would turn the voetstoets clause into a dinosaur.

Does the voetstoets clause still exist? Before throwing out the baby with the bath water, we need to look at who the CPA binds. It only applies to transactions where the parties are acting in the ordinary course. So, does it apply to property transfers? Most sellers of properties aren’t acting in the ordinary course. In other words, it’s not something they do every day. But estate agents and commercial developers are. For those of you who know or are estate agents, this is particularly relevant to you.

Section 55(2) of the CPA stipulates the fundamental consumer right to safe and quality goods. This includes the right to receive goods suitable for the intended purpose, of good quality, in good working order and free of defects.

However, subsection (6) leaves open the door for voetstoets as it states that subsection 2 does not apply where the consumer was INFORMED of the condition and ACCEPTED it in that condition. So, if the consumer was AWARE of the condition and had the opportunity to INSPECT the property, it seems as though there is still scope for the voetstoets clause. Which brings me to recent case law:

Banda v van der Spuy (Supreme Court of Appeal, judgement delivered 22 March 2013)

This was the classic case of the leaking roof. Van der Spuy was the seller. Banda was the purchaser. The roof was thatch. Leaks after heavy rainfall, caused by inadequate support and a 30 degree pitch, rather than the standard 45 degree pitch.Banda was aware that there was a problem with the roof. van der Spuy assured Banda that any problems with the roof would be covered by a guarantee as work had been done to the roof. This guarantee induced Banda to sign the offer to purchase.

The offer to purchase was signed and there after the roof leaked badly. Banda took van der Spuy to the High Court and was unsuccessful. The High Court found that the guarantee provided by van der Spuy was sufficient. Banda took this decision on appeal to the Supreme Court of Appeal. He hired an engineer and was able to prove that van der Spuy was aware of the fact that the roof needed to be replaced and fraudulently concealed this from Banda.

The Supreme Court of Appeal found that van der Spuy acted fraudulently in concealing the existence of the defective leaking roof. van der Spuy was ordered to pay Banda the amount he had to pay for the repairs to the roof, interest per annum from date of judgment, legal costs and the costs of the specialist engineer. Where a seller is aware of a latent defect at the time of the sale and conceals it from the purchaser, the application of the voetstoets clause is limited. Where a seller acts fraudulently, they will not enjoy the protection of the voetstoets clause.

The seller is still responsible for any deliberately concealed latent flaw and can only rely on the voetstoets clause if the defect was unknown to him/her. The burden of proof is on the purchaser to prove that the seller knew or ought to have known about a defect and deliberately concealed it.

Our advice to purchasers: Check the physical aspect of a building before purchasing it. Request the local authority approval of outbuildings, alterations and additions. Request all warranties and documentation regarding work that has been done on the property. Equip yourself with as much knowledge as possible before you sign the offer to purchase.

Our advice to Sellers and Estate agents: Ensure that you and your Sellers complete a defect list before signing the offer to purchase. Disclose all latent defects to the purchaser at the time of the sale. Or know what the consequence will be if you choose not to and weigh up your risks accordingly.

Whether or not the Consumer Protection Act applies, the protection of the voetstoets clause is still available to honest Sellers. It just requires more homework. Voetstoets is a meaty and technical topic.