A seller, in terms of the Property Practitioners Act, Act 22 of 2019, (the Act) per section 67, has a duty to disclose all defects in the property. It’s a rather broad statement and leads one to ask what if they were not aware of certain defects? An example of such would be subduction of earth under the foundation after heavy rains leading to damage to the property due to the foundation being compromised. This would not be considered under the purview of the act as it is not a patent defect… a defect that is so obvious and visible that it must be disclosed. It could be a latent defect that the seller was not aware of, and only became apparent because of the weather.
It must be noted that the act places a duty on both the seller and buyer to sign what is known as a “mandatory disclosure form” listing all known defects to the property. In terms of section 69(2) of the act, the practitioner owes the buyer and the seller a duty of care. This being from the law of delict and as such means that the practitioner can be held delictually liable for any failure to perform their duty in terms of the act, regulations, and the code of conduct. The inference here is that there is a duty on the practitioner to also ensure that if they should not anything relating to a potential defect that it be discussed with the seller and disclosed accordingly.
Our law also recognizes the term “voetstoots” or effectively you cannot hold the seller liable for defects and you accept the property as is. But considering the discussion above, what if there was a defect that was not disclosed? Would this not then render the voetstoots clause null and void? Not necessarily, it can only void the voetstoots clause if there had been an intention on either the seller or the agents and or both their parts to hide or fail to disclose the defect and thus induce a sale. One must prove that the party had the necessary animus (intention) or dolo malo (evil intent) only then can one rely on the warranty clause that is or should be present in all offers to purchase. The breach of the warranty clause thus vitiates the voetstoots clause because it is fraudulent to not disclose defects. The contrary also applies that if the seller or agent were not to have know or could not have known of the defect then they in terms of the reasonable man test, could not have disclosed it and as such voetstoots applies.
This issue arose in the appeal held on 15 June 2023 of Le Roux v Zietsman and Another (SCA), briefly the Zietsmans’ had purchased a property from Le Roux, subsequent to the purchase there had been heavy rains and the roof of the property required substantial repair. After having spent substantial sums and loss of income from not being able to trade, the respondents engaged the services of a civil engineer who reported that the roof of the property was not built to code and repair work had been subpar. The evidence before the court showed that the damage had deteriorated over time and that there can be no doubt that the appellant had not known of the damage. The failure to disclose was confirmed to be fraudulent and that the appellant had induced the respondents into purchase a property knowing full well that there were substantial defects.
The court dismissed the appeal, cited that the appellant had induced the sale, lied and thus was liable for all monies spent to repair the property. An important deduction from the above is that, when buying or selling a property, always ensure that you have either attended to a thorough inspection, and disclosed all issues and as a buyer always ask questions and inspect the entire property. Agents should be wary of sellers who are not willing to disclose or feel that something is not worth disclosing… always disclose.
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Source: Van der Merwe v Meades  4 All SA 42 (AD); 1991 (2) SA 1 (AD) at 8
Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Limited  4 All SA 94 (A); 1977 (3) SA 670 (A) at 683H-684C.
See Banda and Another v Van der Spuy and Another  ZASCA 23; 2013 (4) SA 77 (SCA) para 22.
Rossouw v Hanekom  ZASCA 134 (SCA).
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