THE CONSUMER PROTECTION ACT VERSUS THE VOETSTOOTS CLAUSE
What does voetstoots mean?
In plain English “voetstoots” means “as it stands”.
In many sale and purchase agreements, whether for movables or immovables, there will be a clause included in the agreement which may prevent the seller from having any liability for patent and / or latent defects.
In other words, the item which is being sold, is sold “as it stands” and in the condition it was at the date of the parties signing the agreement.
What do patent and latent defect mean?
A patent defect is a flaw which should be easy to see on inspection of the property and a latent defect is a flaw which is not easy to see on the inspection of the property being sold.
The Consumer Protection Act, 68 of 2009 (“The Act”)
The Act came into operation in 2011 and its purpose is to:
“promote a fair, accessible and sustainable marketplace for products and services by setting national norms and standards relating to consumer protection”
The person selling an item to another person has a duty, in terms of the Act, to inform the purchaser about any latent and / or patent defects that the seller is aware of at the time of entering into the agreement. The seller must ensure that the item being sold is of good quality and can be used by the purchaser for its intended purpose
Do “voetstoets” and the Act clash?
In 2015 the High Court was tasked to hear an urgent application dealing with whether the Act and the provision of “voetstoots” were in contravention of one other.
In this matter, a purchaser bought a house believing the house was constructed out of “brick and water” however after moving into the house, he soon realised that the house was in fact constructed out of wood. The purchaser had bought the house from the seller with the intention to renovate it to suit his specific needs.
The purchaser soon realised that the floors and roof were uneven and had been covered up by cement screeding. This was never disclosed to the purchaser before he bought the house.
The purchaser relied on the Act to protect his rights and the seller relied on the “voetstoots” provision in the agreement as a defence.
The court was asked to decide whether the defects were considered patent or latent defects and if the seller had misled the purchaser into buying the house or was exempt from liability under “voetstoots”.
In order to answer the question before it, the court had to ask itself whether the defects prevented the purchaser from using the house for the purpose of which he bought it, taking into account that the purchaser had wanted to renovate the house to suit his needs.
The common question asked by the court is; “what would a reasonable person do in the same circumstances”. If a reasonable person wanting to buy a house with the intent to renovate it, later found out that the house was wooden and he couldn’t renovate it, would he still have bought the house; i.e. had the fact that the house was wooden been disclosed to him before signing the agreement, would he still have bought it?
The court found that, because of the cement screeding covering up the uneven floors and roof, the purchaser would not have been able to easily see the defect/s. Had the purchaser been warned of the defects, he in all likelihood would not have bought the house. As a result, the court found that the house should be returned to the seller and the purchaser should be refunded his money.
The defects were considered to be latent defects which the seller should have warned the purchaser about before they both signed the agreement.
The moral of the court’s decision; is that a seller cannot rely on voetstoots when he / she sells property (movable or immovable) if he / she was aware, at the time of selling the property, that there were latent or patent defects. The seller must disclose these to the purchaser.
Contributor: JENNA FREEGUARD (Senior Associate) (PMB Office) (General Litigation & Matrimonial Departments)
Tel: 033 – 341 9100
E-mail: jennaf@tmj.co.za
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