The “voetstoots” clause and hidden (latent) defects when selling a property

In a recent case, Gortzen and Another v Moolman, the high court an appeal by 2 property owners, the sellers, Mr and Mrs G, who were seeking to have an order granted by the Roodepoort Magistrates’ Court set aside, which order directed them to pay damages to the purchaser of their property, Ms M, in respect of a claim arising out of non-disclosure by the sellers of latent defects in the property.  

The court considered the actions of sellers in property transactions and the duty of disclosure, with specific reference to reliance by sellers on the presence of a voetstoots clause in the sale agreement and the repercussions of non-disclosure in property transactions. The facts before the court were that Ms M had purchased a property only to discover extensive damp problems in the property after registration of the transfer, prompting her to seek recourse through the legal system. Ms. M successfully argued that the sellers, Mr and Mrs G, knowingly concealed the damp, and that they could not rely on the voetstoots clause, which exempts sellers from liability for defects in respect of which they either had no knowledge or which were patent and visible on a reasonable inspection of the property.  

Discovered extensive damp discovered 

Ms M purchased a home from Mr and Mrs G during November 2013 and after transfer had taken place in February 2014, Ms M discovered extensive damp in the property when planning certain renovations. Ms M accordingly filed a claim in the magistrates’ court seeking a reduction of the purchase price, alternatively damages, alleging that the sellers had not disclosed the latent defects relating to the damp in the walls, when selling their property to her.  

The issue before the magistrate’s court was whether or not the sellers were liable for the costs of repairing the damp in and around the property, in the light of the voetstoots clause contained in the sale agreement. Ms M succeeded in her claim, having successfully proven that the damp constituted a latent defect, as it was not obvious or patent to her, that the sellers were aware of the defects and their consequences, and lastly that the sellers deliberately concealed the damp with the intention to defraud. In January 2021, the magistrates’ court upheld Ms M’s claim in respect of the damp and ordered Mr and Mrs G to pay Ms M damages in the amount of R244 855.00 plus interest and costs. 

Filed separate appeals  

Subsequently, Mr and Mrs G each filed separate appeals in the High Court of South Africa Gauteng Division, Johannesburg. 

It is important to note that Mr and Mrs G acquired the property during their marriage which subsequently dissolved. As part of their divorce settlement, Mr and Mrs G agreed to sell the property. During March 2013 Mr G moved out of the property and some months later, Mrs G retained the services of Limbika Coatings and Painters to attend to work on the property in preparation for its sale. 

He was aware of the damp  

Mr G testified that he was aware of the damp before he moved out of the property due to the damp smell and bubbling paint. He could not, however, confirm whether or not the damp smell and bubbling paint were still present after Limbika Coatings and Painters attended to the necessary repair work, before the property was sold. 

It was found that Mrs G required a second round of repairs to the areas where damp was found within 12 months prior to the property being sold. These facts were consistent with repeated issues arising in respect of the state of the walls and paint.  

“Beautify” the property 

Mrs G testified that she retained a number of contractors including Limbika Coatings and Painters to “beautify” the property so that it could be marketed as favourably as possible. Evidence showed that extensive cosmetic repairs had been undertaken to the very areas that were established to be damp, which clearly showed intent to actively conceal the damp.  

Furthermore, both sellers were signatories to the Property Condition Disclosure Form attached to the Sale Agreement in terms of which no latent defects in the property were recorded, despite Mr G being aware of the damp smell and bubbling. The magistrate’s court found that Mrs G had known of the damp and had knowingly concealed it during the sale process. Importantly, the damp qualified as a defect, as it affected the use and value of the property, and such defect was latent, rather than patent, as it was hidden and not obvious to an untrained eye when viewing the property.   

The appeal in the high court was accordingly dismissed with costs as Mr and Mrs G failed to establish the basis for overturning the magistrates’ court’s judgement.  

When in doubt, disclose! 

This case once again highlights the importance for a seller to provide a full disclosure of any latent or hidden defects in the property, of the which the seller has knowledge at the time of the sale. The voetstoots clause will not come to the rescue of a seller who knowingly withholds information regarding latent defects in an attempt to entice a purchaser into buying the property and paying a potentially inflated purchase price for such property. It is equally important for a seller to notify any estate agent or broker mandated to the sell the property of such defects, and to ensure that these are included in the mandatory property disclosure form. When in doubt as to whether a defect is patent or latent, rather disclose!