This is the warning from Heather Briggs of Shepstone & Wylie Attorney’s property department.

This important aptly-named clause is contained in most sale agreements and basically sates that the seller does not take any responsibility for any patent (visible) or latent (invisible) defects on the property.

“It is, therefore, appropriate that a proper inspection is done prior to signing the sale agreement so that the parties can either agree that the seller will attend to the repairs or agree to a reduced purchase price,” says Briggs.

Because of the nature of this clause, the purchaser should properly inspect the property for issues such as leaking taps and wood rot and should check that the garage doors and the swimming pool pump are in working order. 

In light of the Supreme Court of Appeal case, Odendaal v Ferraris [2008] JOL 22304 (SCA), a further issue to be inspected by a prospective purchaser is whether the buildings they are purchasing have the necessary approval of the Local Authority. 

The SCA held that the non-approval of building plans by the Local Authority is a latent defect because should alteration or demolition be required, the ordinary use of the property would be affected.  As a latent defect, this is covered by the voetstoots clause and the purchaser will not have any recourse against the seller. 

Briggs says that a Voetstoots clause offers the seller a large amount of protection, however, it does not protect him against fraud.  In order to prove fraud on the part of the seller, the purchaser needs to show that the seller had actual knowledge of the defect and that they deliberately concealed it from the purchaser. 

A purchaser is advised to properly inspect the property for any defects and to insist that the seller provide a warranty in the sale agreement that the buildings have all the required statutory approval, she concludes.