The “Voetstoots” Clause


“If the roof doesn’t leak, the architect hasn’t been creative enough”  (Frank Lloyd Wright)

On a more serious note, can you sue the seller when the roof of your new dream house starts leaking shortly after purchase? The “voetstoots” clause has been a cornerstone of trade since Roman-Dutch times.

It allows property to be sold “as is” and ensures that the seller is not liable to the purchaser for patent and latent defects in the property. (A latent defect being a defect which would not have been visible or discoverable upon a proper inspection by the ordinary purchaser and a patent defect being a defect which is visible or discoverable upon a proper inspection by the ordinary purchaser).

In order for aseller to lose the protection afforded him by a “voetstoots” clause, it must be proven that the seller was aware of the existence of a latent defect and that the seller intentionally concealed the existence of the defect with the aim of defrauding the purchaser. This is often an onerous burden of proof which the purchaser will not be able to discharge easily in a court of law. 

If you intend purchasing a property you are therefore well advised to ensure that you inspect the property carefully before signing the deed of sale and, if necessary, to appoint experts to assist. It is also important to inspect the title deed, zoning conditions and building plans of the property prior to concluding the sale. In the long run this can prevent the purchaser from making an expensive mistake.

At Goldberg & de Villiers Inc, the Directors in our Property Law Department, namely Adri Ludorf, Tracey Watson-Gill and Nicholas Mitchell assisted by Deborah Dean and a team of 9 (nine) highly qualified paralegals, will gladly assist you with any of your Property Law related needs.

It will be our pleasure to do your business.
Call 041 501 9800 or email [email protected] or visit