Whatever happened to Voetstoots?

The term Voetstoots, a legal animal inherited by us from the Dutch, has never been more contentious than right now. After the Consumer Protection Act (“CPA”) came into effect and with the broadcast on an insert on Carte Blance about a badly defective house (and the trouble it caused for its new owners), many people seem to think that Voetstoots has disappeared from our property horizon. In my opinion (and that of 99% of all lawyers in South Africa), this is not the case.

Voetstoots simply means that a purchaser buys an immovable property as it lies-warts and all. The seller is protected against any legal claims by the purchaser after transfer related to any patent (clearly visible/easily ascertainable) defects and latent defects in the property that he was not aware of. A problem which aggrieved purchasers often face, is to prove that a seller knew of latent defects. I was once involved in a case where the roof started leaking like a sieve once the rains came in October. When we inspected the roof, it was found that under every hole in the roof, the owner had placed a container to catch rain. Proof was a walk in the park!

Has Voetstoots been removed from our legal system by the CPA?

·         New properties purchased from developers or sellers who sell property in the ordinary course of their business: YES - the CPA is applicable and purchasers are afforded protection in terms of the CPA

·         Secondhand properties privately purchased: NO. If the Voetstoots (or a similar) clause is inserted in the deed of sale, Voetstoots  is applicable

·         Secondhand properties purchased with the assistance of an estate agent: NO. The arguments to justify this are that the CPA is not applicable to professions which are governed by their own acts of parliament (such as attorneys, medical professionals and estate agents) and that estate agents are simply go-betweens between sellers and purchasers and that the only parties to the sale of property are them. It goes without saying that the Voetstoots (or a similar) clause must be inserted in the deed of sale.

However, the jury is still out on this issue. Until the matter is decided in court, the above is simply an opinion.