The CPA refers to the agreements made in due form by a developer who provided (the property) to the purchaser of that property. When a company buys and sells real estate in normal activity, it cannot include a Voetstoots clause in a sale agreement when it sells real estate to a consumer. Therefore, a promoter cannot exclude liability for the defects of the property by a Clause of Voetstoots in its sales contract. However, if the same developer sold their own home, this transaction would not be subject to the CPA, as the developer would not sell that property in normal business. The private sale of real estate is not a transaction within the scope of the CPA, as it is not within the normal framework of operations. Consumer Protection Act 68 of 2008 amended the common law with regard to the Voetstoot provisions in some cases. Effects of Consumer Protection Act 68 2008 on the Voetstoots clause. Haviside v Heydricks and Another 2014 (1) SA 235 (KZP) are an example of what has enabled the seller to successfully rely on the availability of Voetstoots. In this case, homebuyers found that there was no planning for a garage on the land and that, as a result, the structure was illegal. The court found that the lack of legal authorization, such as construction plans, is a latent defect. However, in this case, the seller was not aware of the latent defect and successfully invoked the Voetstoots clause. This decision reminds us that the seller`s knowledge is important because the buyer must prove that the seller was aware of the defect and deliberately concealed it with the intent of the fraud.
The voetstoots clause is a common law principle that literally means “with a kick” sold. This clause allows a contract to be concluded from a tacit guarantee in a contract. All contracts have an unspoken guarantee that the “thing” sold will be sold without default, so the Voetstoots clause means that what you see is what you get. If a buyer accepts the terms in a contract, he accepts the product as it is and waives his right of appeal against a seller when a defect is found. It is important that parties to a real estate transaction become familiar with the effects and exclusions of the Voetstoots clause and carefully read the sales contract to avoid costly and unnecessary legal conflicts. Why exclude a Voetstoots scheme if the CPA is about a purchase agreement? Under section 55 of the CPA, a buyer has the right to receive property that is appropriate for the purposes for which they are generally intended and which are of good quality, in good condition and without defect. The property must also be usable and durable for a reasonable period of time. The law provides that a seller expressly informs a buyer that the property is being sold in a particular condition and the buyer must expressly accept the property in that condition.
In addition, the CPA has a tacit guarantee of quality and corrective measures for repairs, replacements and refunds. A quality guarantee is implicit in each contract, but does not mean that damages must always be paid. If a seller hides a defect or reveals no known defects, he cannot hide behind the voetstoots clause. A defect is an error that, in its normal use, creates an unacceptable risk of damage. The difference between a latent defect and a lack of patents is – a latent defect is a lack of materials that is not visible after proper examination of the property, and a lack of patents is a defect that can be easily detected by anyone who does a fairly thorough examination. According to the Common Law, a seller is liable to the buyer for all latent defects of the land sold for a period of 3 (three) years after the defects are discovered.