Under what circumstances can the application of a voetstoots clause be excluded?

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A voetstoots clause is a contractual provision between a Seller and Purchaser that the item being sold, whether movable or immovable is sold "as it stands". The Seller cannot be held liable for any patent or latent defect in the property sold, provided he has disclosed to the Purchaser all defects to the item of which he is aware. Sellers often include this provision in contracts to avoid claims against them for defects that were disclosed at the time of concluding the sale agreement, or to avoid claims for latent defects of which they were not aware at the time of the conclusion of the sale agreement.

Beneficial as this clause might be, it does not apply without limitation. Chapter 5 of the Consumer Protection Act 68 of 2008 provides that a voetstoots clause will not be applicable to agreements concluded by a Seller who sells such property in the ordinary course of his business. It is expected of a seller of this nature, to take reasonable steps to ensure that the property is free of defects and to know of any defect in the property being sold, if any. Therefore, the effect of this provision is that a Seller concluding a contract of sale of goods sold in the ordinary scope of his business, is not afforded the protection of a voetstoots clause.

The Courts have made it clear that one cannot rely on a voetstoots clause where the Seller knew of the defects at the time of the conclusion of the contract, but failed to disclose such defects to the Purchaser. In the recent judgment in the Limpopo Division of the High Court, Le Roux v Zietsman and Another (330/202) [2023] ZASCA 102, the Court held that a Seller cannot escape liability where he concealed defects in property sold and misrepresented to the Purchaser that the property had no defects known to the Seller at that time.

In this said matter, Mr and Mrs Zietsman purchased immovable property from Mr Le Roux. Within 3 months of the purchase, it rained heavily and the entire roofing of the property leaked. It became known to the Zietsmans that Mr Le Roux had known of the leaking roof and had failed to disclose same to them upon concluding the contract of sale. The Zietsmans subsequently launched a claim for damages in the High Court against Le Roux for the recovery of the moneys spent on repairing the roof. Le Roux raised a defence that he was not aware of such defects at the time of the conclusion of the sale agreement. The Court found that Le Roux had known of the said defects and he was therefore liable for the damages suffered by the Zietsmans.

Unhappy with the decision of the High Court, Le Roux appealed to the Supreme Court of Appeal (SCA). Le Roux further relied on the voetstoots clause in his Appeal. The SCA dismissed his appeal and further stated that in such circumstances, parties cannot rely on a voetstoots clause to escape liability.

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