Buying a home is often the most significant investment a South African will ever make. The excitement of receiving the keys can quickly turn into a nightmare, however, when the first summer rains reveal a leaking roof or a fresh coat of paint peels away to show structural damp.
The relationship between a buyer and a seller regarding defects is governed by a combination of the common law, the Property Practitioners Act (PPA), and occasionally the Consumer Protection Act (CPA).
Here is what happens, and what your rights are, when a seller stays silent about a property’s flaws.
1. Patent vs. Latent Defects
To understand liability, you must first distinguish between the two types of defects:
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Patent Defects: These are obvious flaws that would be identified by a reasonable person during a normal inspection (e.g., a broken window, a large crack in a wall, or missing tiles). The buyer is generally responsible for spotting these.
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Latent Defects: These are “hidden” flaws that are not visible to the naked eye upon a reasonable inspection (e.g., a leaking pool pipe underground, a faulty geyser, or rising damp hidden behind newly installed wood panelling).
2. The Role of the “Voetstoots” Clause
Most Sale of Property agreements in South Africa include a voetstoots clause. This is a common-law term meaning the property is sold “as is” or “as it stands.”
Under a voetstoots clause, the seller is generally protected from claims regarding latent defects. However, this protection is not absolute. If a buyer can prove that the seller knew about the latent defect and fraudulently concealed it with the intent to deceive, the voetstoots clause fails, and the seller can be held liable.
3. The Property Practitioners Act (PPA) of 2019
Since February 2022, the PPA has introduced a mandatory layer of protection for buyers.
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Mandatory Disclosure Form: A seller is now legally required to complete and sign a comprehensive “Disclosure Form” listing all known defects before an agent can even show the property.
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The Legal Impact: This form is attached to the Sale Agreement. If a seller fails to provide this form, the law may interpret this as if no defects were disclosed. While it doesn’t abolish voetstoots, it makes it much harder for a seller to claim they “didn’t know” about a problem they were specifically asked about on the form.
4. When Does the Consumer Protection Act (CPA) Apply?
If you are buying a home from a developer or a professional speculator (someone whose regular business is selling property), the voetstoots clause is usually prohibited. Under the CPA, the buyer has a right to receive property that is in good working order and free of defects. If a defect appears within six months, the buyer may have a right to repair, replacement, or a refund.
5. Your Remedies as a Buyer
If you discover a hidden defect after the transfer, and you believe the seller acted fraudulently, you have several legal avenues:
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Reduction in Price: The most common remedy. You sue for the difference between the price you paid and the actual value of the property with the defect (effectively, the cost of the repairs).
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Cancellation: If the defect is so severe that you would never have bought the house had you known (e.g., the foundation is collapsing), you can sue to cancel the entire sale and get your money back. This is a high legal bar to meet.
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Damages: If you can prove fraud, you can also claim for consequential damages (e.g., if a faulty electrical system caused a fire that destroyed your furniture).
6. The Burden of Proof
The “Empty Chair” problem applies here: the burden of proof lies entirely with the buyer. You must prove that:
1. The defect existed at the time of the sale.
2. The defect was latent (hidden).
3. The seller knew about the defect.
4. The seller intentionally hid it to induce the sale.
Because proving “intentional concealment” in court is expensive and difficult, the best protection is prevention:
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Independent Inspection: Spend the R3,000–R5,000 to hire a professional home inspector before signing the Offer to Purchase.
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Subject-to Clause: Make your offer subject to a satisfactory professional inspection report.
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Scrutinize the Disclosure Form: If a seller has marked “N/A” or “No” across the entire form, ask for specific clarification on the age of the roof and the geyser.
by Jaques van den Ende