Today is the day: the moving truck is ready and packed. The sky hangs grey with a chilling Southeaster, but none of that matters. Today is the day you move into your new house, your new home.
A few hours pass, and boxes litter every room. You told yourself you’d unpack them after a bite to eat and perhaps a hot shower. While you run the water for a shower, ideas for how you will decorate the bathrooms run through your mind. But before you can even begin to contemplate what colours the towels should be, you’re standing in a puddle on the bathroom floor. The shower is flooding. You turn off the tap, but the water remains, refusing to drain. The same fate awaits you in the kitchen as the kitchen sink fills up and the liquid starts to spill over onto the tiles.
Frustrated, hungry, and cold, you decide to phone the estate agent, who in turn responds with mere lip service. You phone your attorney, explaining the property’s rental history, and hasty inspections with estate agents. In between the questions, and the ‘it depends,’ you hear your attorney mention the ‘voetstoots clause.’ The clause echoes with an uneasy familiarity.
As illustrated in Van Rooyen v Brown, it is accepted that the voetstoots clause (“the clause”) is a South African common law principle, which signifies that the merx[1] is bought “as is” and therefore the seller cannot be held liable for defects or even diseases in respect of the merx.[2]
The clause is a double‑edged sword, sharp on both sides, but seldom wielded evenly. The clause offers comfort to the seller and provides a sense of security. In contrast, the clause triggers unease in the purchaser and conveys a delicate warning woven in fine print.
The clause effectively serves as a shield for the seller, and, as a result, liability will not fall at the seller’s feet unless the purchaser establishes one of the specific and limited legal grounds to cast away the seller’s shield and impunity.
The purchaser must therefore establish that the seller fraudulently concealed a defect in the merx sold, and/ or circumstances where the seller provided an express warranty that the merx sold is free of defects.[3] The clause allows the seller no protection in a situation where the seller had knowledge of the latent defect[4] at the time of contract conclusion and fraudulently concealed the defect.[5] This notion is further reinforced by the principle that it is against public policy where contractual undertakings stem from fraudulent conduct.[6]
In the introductory example, and as highlighted by Gortzen and Another v Moolman,[7] to succeed in holding the seller liable, the purchaser would be required to establish that:
- the blocked drains constituted a latent defect that was not obvious or patent[8] to the purchaser,
- the seller was aware of the defects and their consequences, and
- the seller deliberately concealed it with the intention to defraud.[9]
The seller, however, bears no duty to disclose defects where the seller was unaware that the purchaser acted under a misguided belief.[10] In circumstances where the seller intentionally hid the defect, or the objective of the concealment was to mislead, the seller will be guilty of misrepresentation, and the actio empti may be instituted.[11]
One would think that the above-mentioned circumstances or grounds where the clause will fail to protect the seller are just. This may be so. However, what can then be said for the relationship between the clause and a seller’s grossly negligent conduct? The clause, in cases of gross negligence by the seller, regrettably and nevertheless still shields the seller from liability.
Academic Jacolien Barnard expresses that the clause only offers the seller protection where he or she is honest.[12] However, can honesty and gross negligence not overlap? It is credible to conclude that they can, and therefore, one’s ethical compass would point to the direction of concluding that this honesty element proves insufficient and short-sighted.
Honesty requires a different test compared to the tests employed to determine negligence. Honesty operates as a binary standard, requiring a clear distinction between truthfulness and deception. Whereas the determination for ordinary negligence is based on the “reasonable person standard,” which is an objective test premised on the legal fictitious person.[13] The test essentially poses a hypothetical question: “What would the reasonable person have done in these circumstances?” However, the question often moulds to the facts of the case and therefore producing a more specific question.[14] For instance, based on our introductory example, the question would be moulded to state: “What would the reasonable seller have advised the purchaser before selling their house in these circumstances?”
However, to establish gross negligence, the conduct in question must deviate so substantially from the reasonable person standard that such conduct can fairly be characterised as extreme conduct.[15] Grossly negligent conduct has been described as an entire failure to give consideration to the consequences of one’s actions.”[16]
Given the above, it can be argued that the general standard for honesty is feasibly inadequate, while the test for ordinary negligence unduly burdens the seller. Be that as it may, excluding gross negligence from the protection of the clause would allow for a greater degree of impartiality.
It can therefore be argued that the clause, in its original form, is a sword drawn from another age; once formidable in its intention to prevent frivolous disputes after the conclusion of a sale, yet regressing into a clause burdened by a reputation of abuse by sellers, and rusting into a blunt blade holding little ground in a modern arena filled with widespread consumer protection.
Perhaps one could counter that there are, and ought to be, other clauses in private agreements that protect the purchaser from gross negligence. However, this creates the impression that the clause is not strong enough to stand alone and requires an adjoining clause to maintain the balance of fairness, especially in the eyes of the purchaser. Furthermore, such a counter omits consideration of the jurisprudential possibility that the clause could be broadened in its interpretation to encompass grossly negligent conduct by the seller, in turn, redefining the power and protection offered by the clause.
This latter argument is aided by the Consumer Protection Act 68 of 2008 (“CPA”), which, at the heart of this piece of legislation, aims to protect consumers while simultaneously imposing duties on suppliers in respect of a consumer agreement and/or transaction.[17] The CPA restricts the operation of the clause, with section 48 making this approach readily apparent.[18]
Section 48 of the CPA gives the reader a better insight as to why the clause is often unenforceable and excluded from contracts which fall within the parameters of the CPA, with the heading of section 48 laying the foundational understanding, being “unfair, unreasonable and unjust contract terms.”[19]
As mentioned previously, the clause offers the seller a shield that the purchaser will struggle to pierce, and it can be understood that the CPA is not in favour of such a ‘weapon’. It can be surmised that the CPA’s drafters viewed it as a clause in favour of the seller/supplier, offering one-sided protection[20], and further requiring a purchaser/consumer to waive rights and assume obligations in turn of the supplier waiving responsibility.[21]
Although the CPA is more in line with current legal norms, it is crucial to remember the types of agreements that fall within its parameters; private sale agreements, not in the ordinary course of business, regrettably, are typically not protected in terms of the CPA, as they do not fit the definition of a transaction[22] under the CPA. In the absence of the application of the CPA, the common law reclaims the field. Therefore, private sale agreements are often governed by the common law alone.
Therefore, the voetstoots clause should never be a clause that ‘echoes with an uneasy familiarity.’ Both the purchaser and the seller ought to be aware of the clauses that quietly govern and define their contractual relationship, and, in this case, more specifically, their private sale agreements. It is of paramount importance to not merely be only aware, but to further understand how a clause may have a ripple effect on the outcome of your agreements and any disputes that may arise.
It is thus essential to seek guidance from attorneys and estate agents who are masters of their craft, whose mastery will ensure that your interests, whether the seller or the purchaser, are protected with precision and unwavering professionalism.
Bibliography:
Case Law:
Gortzen and Another v Moolman (A3022-2021) [2024] ZAGPJHC 185 (28 February 2024).
Oban v Stead 1978 (2) SA 713 (W).
S v Dlamini 1988 (2) SA 302 (A) at 308D.
Van Rooyen v Brown and Another (A3104/2015) [2018] ZAGPJHC 453.
Journal Articles:
Ahmed R “The standard of the reasonable person in determining negligence-comparative conclusions.” (2021) 24 Potchefstroom Electronic Law Journal (PELJ) 1 – 55.
Barnard J “The influence of the Consumer Protection Act 68 of 2008 on the warranty against latent defects, voetstoots clauses and liability for damages” (2012) 45 De Jure Law Journal 455 – 484.
Tennant S and Vuyokazi M “The Consumer Protection Act and five common law principles.” (2013) 36 – 38.
Legislation:
Consumer Protection Act 68 of 2008.
[1] The law dictionary’s definition of “merx” refers to movable articles that are bought and sold, and/or articles of trade. The merx is understood to be the object of sale.
[2] Van Rooyen v Brown and Another (A3104/2015) [2018] ZAGPJHC 453 para 19.
[3] Van Rooyen v Brown and Another (A3104/2015) [2018] ZAGPJHC 453 para 20.
[4] The Legal Dictionary’s definition of a “latent defect” includes problems or faults in things that you buy that you cannot see (for example, rising damp).[5] J Barnard “The influence of the Consumer Protection Act 68 of 2008 on the warranty against latent defects, voetstoots clauses and liability for damages” (2012) 45 De Jure Law Journal 461.
[6] Barnard (2012) De Jure Law Journal 461.
[7] (A3022-2021) [2024] ZAGPJHC 185 (28 February 2024) para 10.
[8]The Legal Dictionary’s definition of a “patent defect” includes apparent faults identifiable on a reasonable inspection (for example, a crack in the wall).[9] Para 10.
[10] Oban v Stead 1978 2 SA 713 (W) para 717.
[11] Barnard (2012) De Jure Law Journal 461.
[12] Barnard (2012) De Jure Law Journal 461.
[13] R Ahmed “The standard of the reasonable person in determining negligence-comparative conclusions.” (2021) 24 Potchefstroom Electronic Law Journal (PELJ) 2. [14] Ahmed (2021) PELJ 2. [15] Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas and Another 2003 (2) SA 473 (SCA) at para 7. [16] S v Dlamini 1988 (2) SA 302 (A) at 308D para 49.[17] S Tennant & V Mbele “The Consumer Protection Act and five common law principles” (2013) 36.
[18] Tennant & Mbele “The Consumer Protection Act and five common law principles” (2013) 36.
[19] S 1 of the Consumer Protection Act 68 of 200 (“CPA”).
[20] S 48(2)(a) of the CPA.
[21] S 48(1)(c)(i)-(iii).
[22] In terms of S 1 of the CPA, a “transaction’’ means— “(a) in respect of a person acting in the ordinary course of business— (i) an agreement between or among that person and one or more other persons for the supply or potential supply of any goods or services in exchange for consideration; or (ii) the supply by that person of any goods to or at the direction of a consumer for consideration; or (iii) the performance by, or at the direction of, that person of any services for or at the direction of a consumer for consideration; or (b) an interaction contemplated in section 5(6), irrespective of whether it falls within paragraph (a).”
By Cayley Hefer
Candidate Attorney
While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes and should not be construed as legal advice.
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