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Banda and Another v Van der Spuy and Another (08/5489) [2011]. ZAGPJHC 126 (23 September 2011)

Latent defects and the voetstoots clause were again under the spotlight in this recent court case.

The facts of this case were as follows: the purchaser purchased a house with a thatch roof from the seller. The sale was voetstoots. Shortly after the purchaser took occupation there were heavy rains and the roof leaked. The purchaser instructed a thatch roof expert to inspect the roof and quote on the cost of repairs. The expert advised that the roof structure was incorrectly engineered and was so structurally unsound that the roof could not simply be repaired and that the entire roof should be replaced. The cost of replacement was R350,000.00. The purchaser sued the seller who defended the action.

The purchaser claimed that the seller was aware of the defect at the time of the sale. The evidence showed that the seller and his agent had disclosed to the purchaser (prior to the sale) that the roof had previously leaked and that repairs had been effected to remedy the leak.

The roof leaked for the first time since the repairs after the purchaser took occupation. The purchaser claimed that although the leak had been disclosed to him by the seller, the seller was aware that the roof was structurally unsound and that the previous repairs had only been a “temporary fix”. In other words the purchaser claimed that the seller had concealed the full extent of the defect from him and had only made partial disclosure. The seller denied this. The purchaser was unable to prove that the seller was aware of and had concealed the full extent of the roof defect. The court accepted the seller’s version that he had employed a roofing contractor to repair the roof and that as far as he (the seller) was concerned the roof had been properly repaired.

Regarding claims for latent defects each case must of course be judged on its own facts and merits. However, if a property is sold voetstoots (as they always are) the purchaser who wishes to claim against a seller for a latent defect (leaking roof, damp, structural problems etc.) will have to prove two things: firstly that the seller was aware of the defect at the time of the sale; and secondly that the seller concealed the defect from the purchaser with the intention of defrauding the purchaser. The purchaser in the Banda case could not prove the above and his claim failed.

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