The ‘voetstoots clause’: Under new Consumer Protection Act amendments, home buyers are the least protected

BY JACO RADEMEYER - DECEMBER 1, 2016

When a consumer buys property, they expect to receive this in the same condition as when they inspected it. That being said, consumers need to be aware of the new Consumer Protection Act (CPA) as home buyers are the least protected.

The law does not provide practical protection measures to purchasers and until the law changes this, the only way for a consumer to protect themselves is by refusing to sign an Offer to Purchase containing a ‘voetstoots clause’ and thereafter insist on the sale being conditional or subject to a ‘home inspection clause’.

When a Deed of Sale contains a voetstoots clause, which forms part of South Africa’s Common law, parties usually contract that the property will be sold ‘as is’.

General rule: If a property has a latent defect, the seller can only be forced to remedy that default if the purchaser is able to prove:

1.    That the defect is a latent one; AND

2.    That the seller was aware of the defect or reasonably should have been aware of the defect.

When a consumer is about to purchase a home, it is essential that the consumer asks questions.

One must be aware of the fact that the voetstoots clause does not protect a fraudulent seller as misrepresentation, in essence, is fraud.

Misrepresentation comes in two forms:

1. Express or positive misrepresentation – where a certain issue is addressed for example by the consumer and the seller states that the pool pump is working perfectly, is a positive act.

2. Negative misrepresentation – this is a form of non-disclosure from the sellers’ side. So, the seller is aware of something but chooses not to bring this to the consumer's attention, either because he/she fears that the sale will fall through or that they will be expected to pay for repairs themselves.

In order for the purchaser to hold the seller liable for damages, it is advised that they get an independent inspector to inspect the property, but at their own expense. If the consumer can then prove that the defect is present, he must then also prove that the seller was aware or reasonably should have been aware of it at the time of inspection or sale, otherwise he will not succeed with a claim for damages from the seller if he bought the property voetstoots.

As a consumer, one needs to read the offer of purchase thoroughly before signing. There is a tool conveyancers’ use to assist the purchaser. This is done by inserting an essential clause called ‘passing the risk’ within the Deed of Sale, which goes hand in hand with the voetstoots clause.

In conclusion, it is advised that the consumer gets an inspector to check the property out. The consumer will have to peruse the agreement that they entered into to ascertain what their next move will be.