Is Voetstoots still applicable?

What is Voetstoots, one may ask? Voetstoots is a Roman-Dutch term, meaning that an item is sold as it stands at the time of purchase. We will look into the term and establish and unpack if the terms and or resulting clause is still applicable especially relating to immovable property.

When an individual, entity or a family purchases immovable property, they want to buy and get the best house in the best condition possible. Very few people want to purchase a house which has defects in it. When one makes mention of defects, we know that there are two types related to immovable property, being Latent and Patent defects. Patent being visible and Latent being invisible. Voetstoots is often especially associated with defects in the purchase of immovable property.

We still see many sale contracts which include the Voetstoots clause, and one wonders if it's still applicable and to what extent it still protects sellers. We have established that the Voetstoots clause indicates that the property is sold as it stands, meaning with all the latent and patent defects, right? Not entirely.

The seller must act in good faith and point out and advise on all defects in the property. Certain responsibility also lies with the purchaser’s; they must do a thorough, reasonable inspection of the property to check for all patent defects before making an offer to the seller. No one expects the purchaser to be aware of any latent defects as they cannot be easily identified on a reasonable inspection, and that’s where the Voetstoots clause comes into play.

The Voetstoots only protects the seller against latent defects that they were unaware of and had no knowledge of, at the time of sale. Each case is judged on its own merits. A seller who tries to conceal or fails to disclose any defects to the buyer will not be protected under the Voetstoots clause. If that is established, the purchaser may have recourse against the seller. The onus will be on the purchaser to prove that the seller knew or ought to have known about the defects and tried to defraud. Our law is clear and states that he who alleges must prove.

Under normal circumstances, the Conveyancer could try to mediate between the parties if there are any disputes regarding defects in the property. If the Conveyancer cannot assist, the purchaser could appoint a Litigation Attorney to assist with a claim against the seller.

When the Property Practitioners Act 22 of 2019 came into operation, it brought about several changes in the immovable property industry, specifically with regard to defects when there is a purchase of immovable property. Section 67 of the Act indicates that a Property Practitioner must only accept a mandate if the seller has provided a fully completed and signed mandatory disclosure form which sets out all the defects in the property. Both the seller and the buyer must sign this form. If defects are not set out, the buyer can have recourse against the seller, and potentially the Practitioner, if they accept a mandate without the fully signed disclosure form.

We can thus see that the Voetstoots clause is still often applicable, except that the seller now discloses all known defects to the buyer.  If not, they might not enjoy the protection afforded under the Voetstoots clause.

Written by: Frans Malete
Moderated and approved by: Clive Smith