Generally, in terms of our South African common law, when immovable property is sold there is an implied warranty against defects associated with the immovable property. In order to dispense with this warranty, the Seller may include a “voetstoots clause” in the sale agreement, which basically stipulates that the immovable property is sold “as is”, along with any existing defects whether they are patent (overt and obvious defects) or latent (hidden defects).

While the voetstoots clause protects the Seller of the immovable property, they still have a duty to disclose any known defects upon the sale of the immovable property, even if the defect/s are latent in nature. This obligation ensures that Purchasers are fully informed about issues that could influence their purchasing decision.

Should it be determined that the Seller was aware of a defect and failed to disclose it to the Purchaser, the Seller cannot rely on the voetstoots clause. In such cases, the Purchaser may have grounds to pursue a claim for fraudulent misrepresentation by the Seller.

In the recent case of Le Roux v Zietsman and Another (330/202) [2023] ZASCA 102, Mr. Le Roux (the Seller) sold his property to Mr. & Mrs. Zietsman (the Purchasers) while aware of a latent defect in the roof, which the Purchasers later repaired at their own expense. The Purchasers subsequently instituted a claim for damages on the basis of fraudulent misrepresentation by the Seller. The court ruled in their favour, reasoning that the Seller should have reasonably been aware of such longstanding defects. It was further held that while the voetstoots clause is intended to protect the Seller, it does not apply in this case due to the Seller’s concealment of the defects.

Given the above, it is advisable for Sellers to act with complete transparency when it comes to selling their immovable property. This approach can help them avoid potential future claims of misrepresentation, for which they may not be protected by the voetstoots clause.

The Property Practitioners Act 22 of 2019 promotes transparency in such transactions by stipulating that an immovable property condition report, which is to be annexed to the sale agreement, must be completed by the Seller. The Seller must disclose the exact status of the property being sold and any defects he/she may be aware of. The Seller's candid completion of the report is strongly advised, as it can work to their benefit. By disclosing any defects upfront, the Seller reinforces the agreement to sell the immovable property voetstoots as per the sale agreement, thus reducing the risk of future disputes and potential liability.

Should you wish to enquire as to how to better safeguard your legal position in the sale of an immovable property, please do not hesitate to contact us.