Seller disclosure and the voetstoots clause

A voetstoots clause says the buyer takes the property as it stands, defects and all. The Supreme Court of Appeal put its purpose this way in Odendaal v Ferraris (2008): to exempt the seller from liability for defects the seller is not aware of.

It is a term of the contract between you and the buyer, usually written into the offer to purchase, not a rule of a statute. For an example of the wording, this is the clause in the offer in Odendaal v Ferraris: 'The PROPERTY is sold to the PURCHASER voetstoots, there being no warranty against defects, latent or patent offered or required.' Your own offer will use its own words, so read it.

Offer to purchase in South Africa covers the offer as a whole. A conveyancing attorney's walk through the six elements of an offer is a second reading of the same document.

Can a house be sold voetstoots, and is the clause still valid? Courts have enforced it. In Odendaal v Ferraris the Supreme Court of Appeal held that the clause protected the seller of a house, because the buyer had not shown that the seller deliberately hid the defects. In Le Roux v Zietsman (2023) the buyers sued for fraud instead, and the court said the clause was inapplicable to that claim (see below).

The Property Practitioners Act and Consumer Protection Act texts that we read do not use the word voetstoots. Section 67(2) of the Property Practitioners Act says what happens to an agreement when its disclosure form is missing, and how that sits with a voetstoots clause is for an attorney.

The clause turns on a distinction the courts draw between two kinds of defect.

A patent defect is one a buyer can see or find on an inspection. In Odendaal v Ferraris the court said that where a buyer had the chance to inspect and bought anyway, the buyer generally has no recourse against the seller for the patent defects (paragraph 35).

A latent defect is one that is not visible or discoverable on an inspection. In Le Roux v Zietsman the court described it as a defect the ordinary purchaser would not have seen or found (paragraph 1). Odendaal v Ferraris adds that a defect is a material imperfection that prevents or hinders the ordinary use of the property (paragraph 25).

In Odendaal v Ferraris the court held that missing municipal approval for building work is a latent defect, and that, barring public policy or constitutional considerations, a voetstoots clause ordinarily covers it (paragraph 26). The court's summary of the judgment excepts a case where the missing approval makes the property unfit for the purpose it was bought for, and the court distinguished an earlier case on that ground (paragraphs 21 and 22). In Odendaal the buyer had not shown that the seller deliberately hid the missing approvals (paragraphs 37 and 38).

The court also noted that it has been held that the clause's language is wide enough to reach a defect in the title to the property or in its area, not only its physical state. It expressed no view on whether a licensing problem in an earlier case fell into that category (paragraph 24). Whether a servitude, an encroachment or a boundary problem counts is for an attorney.

The fraud exception comes from the common law, not from a statute. Whether a statute adds a further limit is dealt with in the next two sections.

In Odendaal v Ferraris (2008) the Supreme Court of Appeal called it trite that a buyer who hopes to avoid the consequences of a voetstoots sale must show that the seller knew of the latent defect and did not disclose it, and also that the seller deliberately concealed it with the intention to defraud (paragraph 29). So a seller who knew of a latent defect and deliberately hid it, to get the sale, cannot rely on the clause against a buyer who proves it.

Le Roux v Zietsman (2023) is an example of buyers who proved it. They sued for fraudulent non-disclosure and not on the seller's implied warranty against latent defects, and the Supreme Court of Appeal said the voetstoots clause in the deed of sale, which the seller had first relied on and then abandoned, was inapplicable (paragraph 3). The judgment also records that he had pleaded the clause (paragraphs 6 and 16), and the court's remark about it is brief. The court said the seller had a duty to disclose the latent defects in the roof of the guesthouse he sold (paragraph 20). The judgment is marked Not Reportable.

What a buyer has to prove. In Le Roux v Zietsman the court listed three things: that the seller was aware of the defect at the time of the sale, that the seller deliberately did not disclose it, and that the seller did so to induce the buyer to buy (paragraph 1). The defect must also have existed at the time of the sale (Odendaal v Ferraris, paragraph 41).

In Odendaal v Ferraris, fifteen years earlier, the court put it as knowledge of the latent defect, non-disclosure, and deliberate concealment with the intention to defraud. It added that a half-truth told recklessly, or facts known but not revealed because the seller did not consider their significance, may also amount to fraud (paragraph 29). The two statements use different words, and how a court would apply either to a particular sale is for an attorney.

Fraud is not lightly inferred. Odendaal v Ferraris was an application to evict a buyer, decided on affidavits. The court said fraud will not lightly be inferred, especially when it is sought to be established in motion proceedings, and that the allegation must be clear and the facts stated (paragraphs 29 and 42). The buyer had not shown that the seller deliberately hid any of the defects, so the clause protected her. Le Roux v Zietsman was a trial, where the seller's knowledge was reached by inference from the evidence (below).

Unapproved plans. The court thought the Odendaal seller's claim that she did not know the carport plans had not been approved was questionable, because the municipality had rejected them three times. It still found that the buyer had not alleged that she deliberately concealed the fact (paragraph 38).

How knowledge was shown. In Le Roux v Zietsman the court reached the seller's knowledge from the facts. An engineer's report found long-standing defects in the roof. The seller had occupied the property for five years. He had fitted plastic sheeting over an area much larger than the damp spot he admitted to. The court found it inconceivable that he was unaware of the problem, and that the only reasonable inference was that he kept quiet deliberately, to induce the sale (paragraphs 19 to 22).

A partial disclosure. The seller in that case had told the buyers that the roof had leaked but had been repaired. The court found that he misrepresented the roof's true condition and failed to disclose it, and it noted that the plastic sheeting was a temporary measure that was not disclosed (paragraphs 10, 21 and 22).

Section 67 of the Property Practitioners Act 22 of 2019 is headed 'Mandatory disclosure form'. We read it in the Government Gazette of 3 October 2019. Section 67(1) says a property practitioner must not accept a mandate unless the seller has provided a fully completed and signed mandatory disclosure in the prescribed form, and must give a copy to a prospective purchaser who intends to make an offer.

Section 67(2) is worded differently. It says the completed form, signed by all relevant parties, must be attached to 'any agreement for the sale or lease of a property', and that if the form was not completed, signed or attached, the agreement must be interpreted as if no defects or deficiencies of the property were disclosed to the purchaser.

A property practitioner, in the Act's definition, is chiefly a person who, for gain, holds themselves out as selling, negotiating the sale of or publicly exhibiting property for sale on the instructions of or on behalf of another person. A seller selling their own home does not obviously fit that description.

So section 67(1) speaks to the practitioner, while section 67(2) speaks of 'any agreement'. Neighbouring provisions point in both directions. Section 67(3) says a practitioner who fails to comply with subsection (1) may be held liable by an affected consumer, and subsection (4) keeps the Authority's power to act against a practitioner. Section 68(1) says the agreement or the form 'must be drafted by the developer or seller, as the case may be, for his, her or its own account', which names the seller and not the practitioner.

Whether section 67(2) reaches a sale in which no practitioner is involved is an open question that this guide cannot answer. We have not read a court decision on it. It is a question for a conveyancing attorney. We also read the Act as gazetted in 2019. Its section 77 says it comes into operation on a date fixed by the President by proclamation, and we have not read the proclamation or any later amendment, so commencement and amendments are for your attorney to confirm.

What the form asks. Regulation 36.1 of the Property Practitioners Regulations, 2022 sets the format, which it calls an 'Immovable Property Condition Report'. We read its wording on Acts Online, not in the Gazette. In the form, 'to be aware' means to have actual notice or knowledge of a fact or state of affairs. A 'defect' is any condition, latent or patent, that could significantly affect the value of the property, could significantly impair the health or safety of future occupants, or could significantly shorten the property's expected life if it is not repaired, removed or replaced.

The owner answers each statement yes, no or not applicable, and gives a full explanation for every yes. The owner discloses in the full knowledge that, although it is not to be construed as a warranty, buyers may rely on the information in deciding whether, and on what terms, to buy (paragraph 3 of the form). The report also says it is not a guarantee or warranty of any kind, and the buyer acknowledges being told that professional expertise may be needed to detect defects. The owner certifies that the information is true and correct, to the best of their knowledge and belief, on the date they sign.

The list of statements is an image on Acts Online, so we read it in a copy of the form published by propertycoza.com, a property website (February 2025, by its file name). Every other part of that copy matches regulation 36.1 as Acts Online has it, but it is a third-party copy, so compare it with the Gazette before relying on it. For each statement the owner says yes, no or not applicable. The owner is asked whether they are aware of:

• Defects in the roof.
• Defects in the electrical systems.
• Defects in the plumbing system, including the swimming pool, if there is one.
• Defects in the heating and air conditioning systems, including air filters and humidifiers.
• Defects in the septic or other sanitary disposal systems.
• Defects to the property or in its basement or foundations, including cracks and bulges, flooding, dampness or wet walls, unsafe concentrations of mould, and defects in drain tiling or sump pumps.
• Structural defects.
• Boundary line disputes, encroachments or encumbrances.
• Remodelling and refurbishment that have affected the structure.
• Additions, improvements or erections made only after the required consents, permissions and permits were properly obtained. This one is worded the other way round from the rest: it asks about awareness that the approvals were obtained.
• A structure that has been earmarked as a historic structure or heritage site.

The Consumer Protection Act 68 of 2008 is a second place a voetstoots clause can come up. We read the Act as gazetted on 29 April 2009. Later amendments are for your attorney to confirm.

Does the Act reach a private sale? Four things in the text bear on it. The Act's definition of goods includes 'a legal interest in land or any other immovable property'. Section 5(1)(a) applies the Act to every transaction occurring within the Republic, unless it is exempted. The Act defines a transaction by reference to a person 'acting in the ordinary course of business', and a business as 'the continual marketing of any goods or services'. And a supplier is a person who markets goods or services, where to market means to promote or supply them (section 1). Those definitions point toward the question without answering it, and the exemptions in section 5(2) do not name a private seller.

What the quality rules say. Section 55(2) gives a consumer a right to goods that, among other things, are reasonably suitable for their general purposes and are of good quality, in good working order and free of any defects. Section 55(5)(a) says it is irrelevant whether a defect was latent or patent. But section 55(6) takes subsection (2)(a) and (b) out of a transaction where the consumer was expressly informed that particular goods were offered in a specific condition and expressly agreed to accept them in that condition, or knowingly acted in a manner consistent with accepting them in it.

Warranty and waiver. Section 56(1) implies, in any transaction for the supply of goods to a consumer, a warranty by 'the producer or importer, the distributor and the retailer' that the goods meet section 55. It names those three and not 'a seller', and the Act defines the retailer and the distributor by reference to the ordinary course of business. Section 51 makes void a term of an agreement to the extent that it purports to waive a consumer's rights under the Act (section 51(1)(b)(i) and (3)).

So the question is whether a private owner who sells the home they lived in is acting 'in the ordinary course of business'. A developer or builder selling homes is more obviously in business. Buying off-plan covers what a buyer from a developer can rely on, including the NHBRC warranty. For a private owner we have read no court decision, and we have not found the question answered in the Act's text. If the Act does apply to a sale, how a voetstoots clause fits with sections 51, 55 and 56 is a question for an attorney.

The form's own test is a useful one: is it a condition you are aware of that could significantly affect the value of the home, the health or safety of whoever lives there, or how long the home will last? Privately's disclosure form groups its questions into five sections.

A disclosed defect is something the buyer can price into the offer. An undisclosed one that comes to light later can become a claim.

• Roof leaks, and repairs to the roof, including whether a repair was temporary.
• Structural cracks, movement or subsidence, and any engineer's report you hold.
• Damp, rising damp, and any history of water getting in.
• Electrical work you know is not compliant, and plumbing and drainage problems, including past blockages.
• The age and condition of the geyser, and any past failure.
• Pool leaks and pump or filtration problems.
• Building work done without approved plans, and any notice from the municipality about it. Odendaal v Ferraris treated missing approval as a latent defect. Compliance certificates when selling a house covers where to find your approved plans.
• Boundary disputes, encroachments and servitudes.
• Body corporate disputes, and special levies raised or pending.

A written record does two jobs. It tells the buyer what you know, and it is a dated account of what you knew when you sold. The cases we read turn on what the seller knew and did, and nothing in them says a written disclosure protects a seller by itself. The record is evidence of both.

• Step 1, list what you know. Go through the roof, walls, water, wiring, plumbing, boundaries and levies. Find any engineer's report, repair invoice or municipal notice you hold.
• Step 2, write each entry in four parts. What the problem is, since when you have known of it, what was done about it and by whom, and what you do not know. 'The roof was repaired by the previous owner and I have no records' is an honest entry in this format. Whether it is enough in law is for an attorney.
• Step 3, say whether a repair was temporary. In Le Roux v Zietsman the buyers were told the leak had been repaired, and the court noted that the plastic sheeting in the ceiling was a temporary measure that was not disclosed.
• Step 4, date it and have both sides sign. Section 67(2) uses the same idea for the Act's form, which travels with the agreement. Whether to attach your own record to the offer, and what that does to the contract, is a question for your attorney.
• Step 5, keep your evidence. Keep invoices, reports and photographs for each entry, and a signed copy. The sale in Le Roux v Zietsman was in 2011 and the Supreme Court of Appeal ruled in 2023.

This entry is invented, to show the four parts. Replace every detail with your own.

On Privately the disclosure is a form with the five sections above, saved with your listing. You can fill it in as part of the listing or on its own page in your dashboard. Publishing from the listing form saves it as complete, and on the dashboard you mark it complete yourself. The form's own notice says that once it is complete your assigned attorney can access it. You can still edit it until an offer on the listing is accepted, when it locks.

The listing page shows buyers a 'Condition and defects' panel built from five of your answers: known defects, and the damp, electrical, plumbing and foundation questions. Until the form is complete, the panel says the seller has not yet completed it. Your other answers, such as boundary disputes, levies, flooding, roof and wall condition and renovations, are saved with the listing and are not part of that panel.

It is Privately's own form, not the prescribed form in the regulations, so it does not answer the section 67 question above.

When you are ready, you can list your property and complete the disclosure form as part of the listing. To talk to an attorney about your own sale, find a conveyancing attorney.

Before the offer. Section 67(5) of the Act says nothing in that section prevents a buyer from inspecting the property to confirm its state before the transaction is finalised. A buyer who inspects and buys with visible defects generally has no recourse for them (Odendaal v Ferraris, paragraph 35).

Inspectors set their own fees. HouseCheck, one inspection company, publishes about R4 200 for a comprehensive report on a typical three-bedroom, two-bathroom home, and says its fees follow the number of rooms. Treat it as a rough guide and ask inspectors for a quote.

After transfer. A buyer who finds a defect after transfer would face the elements the two courts described above (how a court applies them to your facts is for an attorney). In Le Roux v Zietsman the buyers paid R1 300 000 for a guesthouse. The roof leaked badly about three months after they moved in. They sued for the cost of repairing the roof and for the income they lost while the repairs ran. The regional court declared the seller liable for about R167 480 for the repairs and R68 038 for the lost income, and the Supreme Court of Appeal dismissed his appeal with costs (paragraphs 2 to 4 and 23).

The buyers ran the property as a guesthouse, and lost income formed part of the claim because the business could not run while the roof was repaired (paragraphs 2 and 5). A claim on a family home may look different. The case ended in a damages award, and whether other remedies are open on a given set of facts is for an attorney.

Time limits can apply to a claim, and a buyer who suspects concealment can ask a conveyancing attorney where they stand. Conveyancing and the transfer process explains the stages of a transfer, and how to buy a house privately covers the checks a buyer can make before signing.

This is general information about how disclosure and voetstoots work in South African law, not legal advice about your property. If you are dealing with a defect you are unsure about, or a buyer has raised a claim, speak to a conveyancing or property attorney.

This guide leaves four questions to an attorney: whether section 67(2) of the Property Practitioners Act reaches a sale with no practitioner, whether the Consumer Protection Act, including its sections 51, 55 and 56, reaches a private seller, how a court would apply the elements above to your facts, and what remedies are open to a buyer on yours.