by Nelisha Pillay
In the intricate realm of property law, one encounters a term of peculiar significance:
“Voetstoots.”
Originating from Roman-Dutch law, this term translates directly to ‘testing something by shoving it with one’s foot.’ Essentially, it serves as the seller’s proclamation: “You’re acquiring it in its current condition.”
But does this clause truly offer sellers a free pass from potential buyer grievances regarding property imperfections?
When navigating the nuances of this clause and its ramifications on post-sale issues, it becomes imperative to distinguish between “patent defects” and “latent defects.” Patent defects refer to those visible or discernible upon inspection, such as wall cracks or missing tiles. Conversely, latent defects such as faulty geysers or structural flaws remain hidden, only surfacing upon deeper examination.
In property transactions, the revelation of latent defects can spark disputes between parties. It is incumbent upon sellers to fulfill their obligation to disclose these latent defects. Failure to disclose known latent defects circumvents the voetstoots clause and amounts to fraud, as evidenced in the landmark case of Le Roux v Zietsman and Another (330/2022) [2023] ZASCA 102.
But why does the voetstoots clause persist in sale agreements? Ostensibly, it aims to shield sellers by apprising purchasers of the property’s as-is condition. However, this shield is not impenetrable. Misrepresentation nullifies its protection, rendering sellers liable if they intentionally conceal known defects.
Furthermore, legislative frameworks like the Property Practitioner’s Act 22 of 2019 impose obligations on sellers to disclose property defects through Mandatory Disclosure Forms. This not only fosters transparency but also empowers buyers with vital information.
The existence of a voetstoots clause does not absolve a seller of liability. Whether you are on the buying or selling, remember inspect thoroughly, disclose honestly, and above all, do not let excitement cloud your judgment.
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