If a Voetstoots clause was included in the sales contract and the real estate agent provided the buyer with a state form signed by the seller, the only time an aggrieved buyer could successfully sue a seller, if the buyer could prove that the seller was aware of a defect but deliberately concealed that information from the buyer. Some mediation lawyers (normally appointed by the seller) and real estate agents (also appointed by the seller usually) struggle hard to keep the voetstoots clause in the agreement and sometimes even refuse empty to remove this clause. Given this type of harassment, buyers should be aware that they have the option of removing a clause they like or including it in the offer agreement. If the seller, or lawyer or agent resists or refuses to remove the voetstoots clause, then the buyer should seriously ask what information about the property is hidden and consider moving away from the agreement. However, it can be very difficult – and expensive – to prove that sellers have deliberately withheld the information when problems are only discovered after the sale. A known term that any buyer and seller of real estate has encountered is that of the Voetstoots clause. The term comes from dutch and translates directly into “shoveled a foot.” The term means that the product, in this context the real estate, is sold “as seen” or “how it is”. On the other hand, the buyers ellis and Another v Cilliers NO e e.a. 2016 (1) SA 293 (WC) successfully relied on the Voetstoots scheme, as they were able to demonstrate that the seller knew a number of defects that they did not disclose to the buyer. These defects included dilapidated foundations, support beams and poles, as well as a false ceiling and cement floor, applied to wooden floors to conceal subsidence and create the illusion that the house was flat. The court found that the seller, even though he did not consider the irregular floors to be a defect, still had a “parallel obligation” to disclose to the buyer unusual and unusual features of the property. The Court found in this case that the application of the Voetstoots clause was limited when a seller was aware of a latent defect and concealed that fact from the purchaser. However, if the seller fraudulently conceals that there is a latent defect, the Voetstoots clause cannot be invoked at all.
In South African law, the voetstoots clause is a standard term that is inserted into real estate – and many others – in sales contracts. It stipulates that the buyer buys the property or any other object in its current form, whether or not he has patents or latent defects. If a deed of sale contains a “Voetstoots” clause, the legal situation described above changes completely. The common law is amended and the clause excludes the liability of a seller in the event of latent defects. In other words, where a person for sale contains a “Voetstoots” clause, the buyer has no right to the seller with respect to latent defects, unless the buyer can prove that the seller was aware of the defect at the time of the sale and had concealed its existence from the buyer with the intention of deceiving him.