Sellers of homes are not always protected by law if there is a latent defect to the property that they are unaware of. The voetstoots clause does not protect sellers aware of a latent defect in the property they are selling if they do not notify the buyer of the issue.
Buyers will often discover unpleasant surprises shortly after they purchase a property; however, the voetstoots clause states that the purchaser buys the property from the seller as it stands, preventing the seller from claiming damages with respect to defects in the property.
There are two types of property defects:
- A latent defect is not readily revealed by a reasonable inspection of the property being sold
- A patent defect is not hidden and should be easily noticed during a reasonable inspection.
The purchaser has the duty to acquaint themselves with the condition of the property when purchasing it and cannot later claim that they did not see any patent defects. However, sellers who are aware of the defects must disclose the information to the purchaser, as they will not be protected by the voetstoots clause if the buyer later discovers the known issue within the property.
Johan du Toit and Noluthando Ndala from Barnard looked at a case – Maloka v Vermeulen and Another (2017/4418) [2023] ZAGPPHC 13 – which confirmed that sellers who are aware of a latent defect are not protected by the voetstoots clause.
