Real Estate Investor Magazine South Africa October 2018 | Page 6
Q&A
Property Advice
BRUNO SIMAO
Founder & Director Bruno Simao
Attorneys
Q
What is a voetstoots clause, patent and latent defects and how does it impact me
when buying a property?
A
The voetstoots or “as is” clause, simply put, means
that what you see is what you get. To elaborate on
this a little further, by using this clause, the seller excludes
the implied warranty that there exist no latent defects in
the property being sold, leaving the risk of such defects on
the shoulders of the purchaser. This affords the seller pro-
tection from any later claim by the purchaser for damages,
the reduction of the purchase price or even cancellation of
the sale as a result of such defects.
To understand better how voetstoots works, one must dis-
tinguish between what is known as a “patent” defect and a
“latent” defect.
“Patent defects” are defects that are apparent and easily dis-
coverable by a reasonable inspection, e.g. broken cupboards
and windows.
“Latent defects”, in contrast, are defects that are not ap-
parent to an ordinary purchaser, often unnoticeable to an
untrained eye, e.g. mould resulting from dampness and
flooding caused by rain.
It has always been a principle in our law that if the seller
of a property is aware of a latent defect but fails to disclose
this to the purchaser, then the seller will not be able to rely
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EXPERTS
4
on the voetstoots clause.
Another, very important, change to the application of the
traditional voetstoots clause was affected through the in-
troduction of the Consumer Protection Act, no. 68 of 2008
(“CPA”).
According to Section 55(2), every consumer has a right to
receive goods that are “reasonably suitable for the purposes
for which they are generally intended”, “are of good qual-
ity, in good working order and free of any defects”, “will
be usable and durable for a reasonable period of time” and
“comply with any applicable standards”.
It follows in Section 56(2) that if the above is not adhered
to, “within six months after the delivery of any goods to
a consumer, the consumer may return the goods to the
supplier, without penalty and at the supplier’s risk and
expense”. In such circumstances the supplier must, at the
choice of the consumer, either:
• “Repair or replace the failed, unsafe or defective goods;”
or
• “Refund to the consumer the price paid by the
consumer”.
This protection will not, subject to some exceptions, be af-
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OCTOBER/NOVEMBER 2018 SA Real Estate Investor Magazine