A misconception
The voetstoots clause has until recently always been accepted at its face value, most buyers acknowledging that they buy their home 'as it is'. However, some people have now picked up the idea that, since the passing of the Consumer Protection Act, the 'voetstoots' clause is no longer relevant because the agent, as a member of the supply chain, can be held responsible for any defects which later become evident.
Wayne Albutt, Regional Sales Manager at the Rawson Property Group in the Western Cape says that the agent is, in their view, supposed to be an expert in the field, a person having full product knowledge and should therefore have identified the defect before the transaction. Some even think the voetstoots clause is not applicable in any way to home sales since the inception of the CPA.
This, says Albutt, is a misconception. The Agreement of Sale is signed between two parties, the seller and the buyer. The seller is by law obliged to disclose any defects in the home of which he is aware at the time of the sale, but he cannot later be held liable for those of which he was not aware. Voetstoots is always applicable where the seller is not selling the property in the course of his normal business and the CPA does not make voetstoots illegal or invalid in these instances.
A developer, on the other hand who sells property "in the normal course of his business", says Albutt, cannot sell a property subject to a voetstoots clause or condition as he is recognised as a supplier in terms of the CPA. There are, however, instances which do exonerate a developer, e.g. where certain technicalities have to be taken into account, but these are not typical.
"In most transactions the estate agent is merely a facilitator, not a party to the contract, and therefore can only be prosecuted in terms of the Consumer Protection Act if his supply of service was in contravention of the CPA," says Albutt.
It is generally agreed among South African attorneys, that the purchaser should take it upon himself to inspect every aspect of the home or, better still, get a qualified inspector to do this for him.
"Similarly, it is now widely accepted that the agent, although not directly in line for prosecution, should draw up a comprehensive questionnaire on the current state of the home, which he should then go through diligently with the seller. If the seller, for example, signs a comprehensive checklist in which, among other things, he states that as far as he knows the geyser or the swimming pool equipment are in working order, the agent will probably be protected from any comebacks in terms of the CPA, however, non-disclosure by the seller of a defect which he did know about, says Albutt, is a very serious offence and, if it can be proved, it will make the seller liable in law.
