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"Voetstoots" and the Consumer Protection Act (CPA)

Voetstoots upheld as seller ignorant
22 Nov 2011
(courtesy of Property24.com)

This makes very interesting reading:

With the Consumer Protection Act now making it even more essential that the seller of a home declare openly any defects of which he is aware, it has been said by some estate agents that the voetstoots clause is now becoming redundant:  the repair of almost any defect in the home discovered after the transfer of the property can, it has been said, now be claimed for.

The judge, after listening to the technical backup to this statement, accepted its validity – but he said the sellers and their agent being unaware of this, could not now be penalised on account of it – and, as the house had been sold voetstoots, the buyer had no claim on them.
Not so, says Anton du Plessis, CEO of the Cape Peninsula central southern suburb estate agency, Vineyard Estates.

Quoting a recent High Court case (Banda and Another vs van der Spuy and Another), du Plessis said this reinforced the voetstoots principle that, if the seller was not aware of the defect, he cannot after the sale be held responsible for it.

Du Plessis said in the case referred to the van der Spuys sold their home to a Mr Banda.  About one year prior to the sale, severe storms had damaged the roof and caused leaking. The insurer then paid for comprehensive repairs to be carried out and these were guaranteed for six months by the thatcher. The van der Spuys also informed Mr Banda of this and of the six month warranty.

Subsequently, heavy winter rains (the home is in Villiersdorp, Cape) fell and the roof again leaked, he said. At the subsequent trial Mr Banda produced a specialist witness with extensive thatching experience who testified that the problem arose from a latent defect. This was that the 26° to 35° pitch of the roof was not steep enough to make the thatch efficient.  It had to have a 45° pitch.

The judge, after listening to the technical backup to this statement, accepted its validity – but he said the sellers and their agent being unaware of this, could not now be penalised on account of it – and, as the house had been sold voetstoots, the buyer had no claim on them. The sellers had been aware of the defects and had them repaired and could therefore rightly consider themselves in the clear.

Du Plessis said that it had to be acknowledged that throughout SA legal history, sellers have “hidden behind” the voetstoots clause but in this case only an expert would have recognised the defect and the seller could not be blamed for it. 
The voetstoots clause, therefore, could be enforced.

“What is interesting is that I would guess that a significant percentage of thatched roofs in South Africa (perhaps 15%) do not have 45° roofs but most get away with it because they are not in high rainfall areas,” said du Plessis.

He added that house buyers looking at thatched homes should check the pitch and sellers from now on are advised to warn buyers in advance if the pitch is possibly inadequate.

Trudie Broekmann, a director of Gunstons Attorneys in Tokai, added that if the house was sold subsequent to the CPA becoming effective on 31stMarch 2011, the estate agent might well have been regarded by the court as a supplier of the property and would have been liable for the defect.  Agents, she said, will not, like sellers, be protected by the voetstoots clause.

Readers' Comments :
Surely Trudie Broekman is wrong in her assertion? The estate agent is an intermediary by definition and intermediaries are excluded from the provisions of the CPA where the business of such intermediary is regulated by other legislation (see s1 of the Act), as is the case with agents being regulated in terms of the Estate Agency Affairs Act. The agent can never be the supplier, as he/she does not take ownership of the immovable property to be sold and therefore does not enjoy the entitlement to alienate such property.

Only the owner can do that. Hence, the agent cannot be a supplier, only an intermediary in the transaction. The cited case is the first of what will probably be a slew of test litigation regarding the application of the CPA to second-hand property sales. It is important to read the Act as a whole, but agents and sellers may well rely on the provisions of s55(6)(a) and (b) to escape liability for defects that are known to and declared by the seller and agent. In my opinion, s55(6) entrenches the voetstoots clause in an agreement of sale of second-hand property, so long as all known defects are declared by the seller and agent respectively. - Kevin

Yet again we hear about the CPA, where it is totally irrelevant.  The CPA can only apply to the Services provided by the Estate Agent in this case, the Seller is a private individual and therefore the CPA would have absolutely nothing to do with it, so why start the article with reference to the CPA? - Tony

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