Online Reporter
Trust Maanda
Legal Position
IN sale agreements, be it sale of movable or immovable property, there are often terms and conditions.
One of the conditions in a sale agreement is a voetstoots clause.
“Voetstoots” is an Afrikaans term, with origins in in Roman-Dutch Law. It means “with a push of the foot”, which translates as “testing something by shoving it with one’s foot”, and implies that when you buy something, what you see is what you get and it is your responsibility to give it a kick with your foot, if that is what you need to do to test it.
When I buy some sweet potatoes or tomatoes by the roadside, I often check if the bucket is full by the push of a foot! If the contents collapse, I ask the vendor to repack under my watchful eye!
The English equivalent for voetstoots is buying something “as is”, i.e. in the condition you find it.
It means the buyer is buying it as it is, without more.
Where a voetstoots clause exists, it is up to the buyer to check if the thing is fit for the purpose he or she needs it.
The clause indicates that the buyer accepts the item in its current condition, protecting and exonerating the seller from liability for hidden and visible defects. The buyer buys the item “as it stands” or “where it stands.”
The clause exempts the seller from responsibility for issues discovered after the sale. This imposes a duty on the buyer to satisfy himself of the condition of the goods he is buying.
A voetsoots clause is normally accompanied by provision that the Purchaser acknowledges that they have inspected the property, that they are satisfied as to the nature and condition thereof, any servitude or leases to which the property may be subject, and their extent, boundaries, beacons and locality, thereby waiving and abandoning any claim they may otherwise have had against the Seller for any deficiency in the area of the property.
A further clause my state that the Seller shall not be responsible for any defects on the property, whether patent or latent, nor for any error in description or deficiency in area.
This means if a Seller sold you a stand of 2000 square metres and it turns out on the ground that it is actually 1900 square metres, the seller is not responsible for the defect in size, if there is a voetstoots clause.
But there are exceptions to the voeststoots clause. The clause does not protect the Seller from liability if the Seller knew about the latent defect and failed to disclose, while deliberately concealing it.
That will be regarded as fraudulent concealment.
Irrespective of the voetstoots clause, a failure to disclose or to conceal known defects can result in claims for damages, misrepresentation, or fraudulent non-disclosure.
If the Seller concealed the defect in an obvious way, for example, by painting over a crack, that might be easier to prove in court.
The voetstoots clause cannot be relied upon by a Seller who knows of deficiencies and deceives the buyer. Therefore, even though the clause transfers risk, it does not absolve fraudulent non-disclosure, which is an essential protection for purchasers.
That clause does not protect the Seller where he has made material representation on the property he is selling.
If he says he is selling a 2026 model of a car, the basis on which an agreement is entered into, and it turns out that it is a 1996 model, a voetstoots clause cannot save him or her.
In Donners Motors (Pvt) Ltd v Kufinya, 1968 R.L.R. 12 (A.D.) a seller told the Buyer that he was going to repair a defect that was on the car he was selling.
He did not repair the defect and went on to sign a voetstoots clause.
The buyer sought to have the agreement of sale set aside. The seller’s promise was not a term of the written agreement: on the contrary it contained a clause to the effect that the buyer had satisfied himself of the car’s condition and that the seller should not be responsible for any defects which might exist on delivery. The court rescinded the agreement because the seller had not kept his promise to repair the defect.
A Seller has a duty to disclose latent defects in the thing of which the Seller is aware.
A Seller will be deprived of the protection afforded by a voetstoots clause where the Purchaser can prove that the Seller was aware of a defect in the thing sold at the time of the making of the contract and fraudulently concealed its existence from the purchaser.
The clause highlights the importance of thorough inspections before signing, as buyers generally cannot hold the Seller liable for defects found later.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
