'Will the Consumer Protection Act make the voetstoots clause redundant?'

29 Nov 2011

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.

"In the case referred to," said du Plessis, "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."

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 degree pitch of the roof was not steep enough to make the thatch efficient. It had, he said, to have a 45 degree pitch.

The judge, after listening to the technical backup to this statement, accepted its validity - but, he said, the sellers and their agent themselves 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, had 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," he said, "is that I would guess that a significant percentage of thatched roofs in South Africa (perhaps 15%) do not have 45 degree roofs but most get away with it because they are not in high rainfall areas. 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 31st March 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.