What the Voetstoots Clause Actually Means
The voetstoots clause is a standard term in most South African property sale agreements. It means the property is sold "as is" — with all its visible and hidden defects. The buyer accepts the property in the condition it is in at the time of sale, and the seller is not liable for defects the buyer discovers after taking occupation.
For many years, buyers were told that once they signed a voetstoots agreement, they had no recourse for any defects discovered post-sale. This is not accurate. The clause has significant limitations, and there are circumstances in which it can be challenged successfully — sometimes resulting in a price reduction, damages, or even cancellation of the sale.
When Voetstoots Does Not Protect the Seller
South African law recognises two categories of defects relevant to voetstoots disputes:
- Patent defects — visible or discoverable defects that a reasonable buyer exercising ordinary care would notice during an inspection. A cracked driveway, peeling paint, or an obviously damaged roof visible from the street are examples. Voetstoots applies to patent defects and the buyer accepts them when signing.
- Latent defects — defects that are not visible during a normal inspection and that the buyer could not reasonably have discovered. A leaking roof that only becomes apparent in heavy rain, rising damp hidden behind a fresh coat of paint, or a structural crack covered by a cupboard are classic examples.
A voetstoots clause protects a seller from claims about latent defects only if the seller was unaware of the defect. If the seller knew about a latent defect and deliberately concealed it or failed to disclose it, the voetstoots clause affords them no protection. This is the critical point that many buyers do not know.
To succeed in overturning a voetstoots clause on this basis, you must prove two things: that the defect was latent (not reasonably discoverable), and that the seller knew about it before the sale and chose not to disclose it.
The Consumer Protection Act Changes the Picture
The Consumer Protection Act (CPA) applies to property sales where the seller is in the business of selling property — property developers, estate agencies selling from their own stock, and companies selling multiple properties. It does not apply to private individuals selling a personal home they have lived in.
Where the CPA does apply, a voetstoots clause is effectively overridden. Section 55 of the CPA gives buyers the right to property that is reasonably suitable for its purpose and free of defects. A seller who relies on voetstoots in a CPA-applicable transaction may find the clause unenforceable.
If you are buying from a developer or a property company, the CPA almost certainly applies. Ask your attorney before signing any agreement containing a voetstoots clause in this context.
How to Build a Case
If you discover a significant defect after taking occupation and believe the seller knew about it, the process for challenging the voetstoots clause is:
- Document the defect immediately and thoroughly — photographs, video, and measurements. Establish exactly when you discovered it and what triggered the discovery.
- Get an independent expert assessment — a structural engineer, plumber, electrician, or roofing specialist (depending on the nature of the defect) can provide a written report confirming the defect's nature, severity, and — critically — whether it shows signs of being an existing condition that was present and knowable at the time of sale. Moisture behind fresh paint, for example, is something an expert can often date or characterise.
- Look for evidence the seller knew — prior repair invoices you may have found in the property, disclosure to the estate agent that was not passed on to you, or testimony from neighbours or previous tenants who were aware of the issue. WhatsApp messages or emails between the seller and estate agent can sometimes be obtained via a subpoena in litigation.
- Check what was disclosed versus what was not — most sale agreements include a defect disclosure form. Review what the seller disclosed and whether the defect you have found was omitted. An omission that turns out to be material can support a finding of fraudulent non-disclosure.
Your Legal Remedies
If you can establish that the seller knew about a latent defect and concealed it, your remedies under South African common law are:
- Actio redhibitoria — cancellation of the sale and return of the purchase price, available where the defect is so serious that you would not have purchased the property had you known about it
- Actio quanti minoris — a reduction in the purchase price to reflect the diminished value of the property given the defect
- Damages — compensation for costs you have incurred as a result of the defect, including repair costs and consequential losses
These claims must be brought within a reasonable time of discovering the defect. Under South African prescription law, claims generally prescribe after three years from when the claimant became aware of the facts giving rise to the claim.
The Role of the Estate Agent
If the seller disclosed a defect to the estate agent who then failed to pass the information on to you, the agent can share liability for the non-disclosure. Estate agents have a duty under the Estate Agency Affairs Act to disclose material defects they are aware of. A complaint to the Estate Agency Affairs Board (EAAB) and a damages claim against the agency are both options in this scenario.
When to See an Attorney
Any challenge to a voetstoots clause involves factual and legal complexity. You need to establish the nature of the defect, the seller's knowledge, and the appropriate remedy — none of which are straightforward without legal assistance. If the defect is significant (anything over R20,000 in repair costs warrants this) and you have evidence suggesting prior knowledge, consult a property attorney as soon as possible. Many will offer a free or low-cost initial consultation. A demand letter from an attorney often resolves voetstoots disputes without litigation.
