INSIGHTS

South African case law describes defects as “abnormal qualities or attributes which destroy or substantially impair the utility or effectiveness of the property for the purpose for which it had been sold and is commonly used”.[1] The effect of the defect/s being that it interferes with the ordinary use of the property and renders it unfit for the purpose for which it was intended to be used, for example, residential habitation. [2]

The law differentiates between latent defects and patent defects. Latent defects are those which are not apparent, visible, obvious or easily discoverable upon reasonable inspection of the property by an ordinary purchaser.[3] These types of defects may include internal wall cracks, roof leakages or rusted internal pipes. On the other hand, patent defects are those which are capable of being seen and are visible upon reasonable inspection of the property, such as a broken door, missing tiles or cracks in the wall.

While patent defects are often recorded in a written sale agreement and are thus known to both the seller and the purchaser, latent defects may be unknown to both parties, unless the services of an expert, such as an engineer or home inspector, are obtained.

In the circumstances where a latent defect becomes known to a purchaser, after the conclusion of the sale of the property, he or she may be in a position to institute legal action and possibly claim damages from the seller based on non-disclosure. However, in these instances, the seller may be protected through the operation of the “voetstoots” clause.

The “voetstoots” clause refers to the action of purchasing a property “as is” or “just as it stands” and it has the effect of excluding liability for damages in respect of latent defects. However, the operation of the clause is confined to those latent defects which the seller did not deliberately conceal.[4] The case law is well-established in this regard and it holds that a seller who intentionally and fraudulently conceals the existence of a latent defect by failing to disclose it to the purchaser and/or misrepresents the status of a latent defect to the purchaser, forfeits the protection of the “voetstoots clause” and may be held liable for his or her fraudulent conduct. [5] 

With the commencement of the new Property Practitioners Act 22 of 2019 on 1 February 2022, it is now compulsory for a seller to complete and sign a “disclosure form” wherein he or she must disclose all defects, whether patent or latent, that are known to him or her. The fully completed and signed disclosure form must also be signed by the purchaser and attached to the sale agreement. In support of the disclosure form, a seller may consider obtaining the services of an expert to ensure that there are no latent and/or underlying defects in the property.