Exceptions to ‘Voetstoots’ clauses

Professor Lovemore Madhuku in Law School at the University of Zimbabwe in our days always reminded us of an elementary principle of law that, “to every general rule there is an exception”.

The general rule is that an implied warranty against latent defects is not available where the merchandise is sold voetstoots (as it stands, with all its defects and vices). Sales by in execution, sales by executors and trustees of insolvents, customs sales and sales conducted under statutory powers are generally regarded as voetstoots even if the contracts of sale do not expressly declare so.

In the previous article we opened a conversation on latent and patent defects. Inevitably we passed through the“voetstoots clause” in the purchase/sale agreement. This week we are going to look at these clauses and the exceptions, meaning when it does not apply even if it is provided for in a contract.

The term “Voetstoots” originated from Afrikaans, the word literally means “as it is.” The clause is meant to protect the seller against all defects in the property including all latent defects which are unknown to the seller.

The point was made in the previous article that the seller has a legal duty to disclose to the purchaser any latent defects to the property at the time of concluding and signing the offer to purchase/sale agreement.

The voestoots clause is not meant to protect a Seller who fraudulently conceals latent defects in the property they are selling.

Whilst the voetstoots clause is designed to protect the seller, our Zimbabwean case law and legislation provide for certain instances where the seller will not be able to raise the voetstoots clause as a defence in a claim for damages. There is ample authority in Zimbabwe and in other Roman-Dutch Jurisdictions for the exceptions.

A voetstoots clause does not exempt the seller from liability for latent defects in the following circumstances:

a. Fraudulent Non-Disclosure. We have made this point in the past. Where the seller knew of the defect and deliberately chose not to disclose the defect at the time of sale, the seller will be held liable. The seller is held liable for latent defects in such circumstances even in the presence of a voetstoots clause on the basis of fraudulent non-disclosure. (Matambo v Chakauya HB-23-92 & Truman v Leornard 1994 (4) SA 371.)

The seller’s intent and knowledge of latent defects at the time of contracting is not always easy to prove.

The practice that has been developed is that parties to the agreement draw up a disclosure form describing all the defects on the property. In this agreement, the seller will make a declaration confirming that the items listed in the said form constitute a full and proper disclosure.

In the event of a dispute arising as a result of the existence of latent defects on the property parties in the future can rely on this disclosure for recourse.

b. A voetstoots clause does not exempt the seller from liability for a fraudulent or innocent misrepresentation unless parties agree otherwise. (Claasens v Pretorius 1950 (1) SA 738 (O) & Cockcroft v Baxter 1955 (4) SA 93 (C)).

c. A voetstoots clause does not limit the liability of a seller whose contract falls within the ambit of the Consumer Contracts Act (Chapter 8:03). The voetstoots clause will not be applicable to a transaction where the seller is selling the property in the ordinary course of business. This is also applicable to service providers like developers, builders and investors.

Section 2 of the Consumer Contracts Act essentially defines a consumer contract as a contract for the sale or supply of movable goods or services or both ‘in which the seller or supplier is dealing in the course of business and the purchaser or user is not…’

d. Where there is doubt as to whether a sale is voetstoots or not, there is a presumption against voetstoots. (Matambo v Chakauya HB-23-92)

e. A voetstoots clause does not limit the liability of a seller when a defect manifests soon after the conclusion of a contract of sale. Such a defect is deemed to have existed at the time of sale. (Norton v Johnston 1930 SR 93.)

Before rushing to sign an agreement, take time to familiarise yourself with the conditions of the contract in particular the impact and exclusions to the voetstoots clause. Take advantage of your legal counsel to carefully read the sale agreement. This will save you money and time in the future from legal battles.

LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They do not constitute legal advice. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about employment law, commercial law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email attorneyarthurmarara@gmail.com-ebusinessweekly