tawandamusarurwaTHE position of the law is that a seller is obliged to deliver a merx (the thing sold) that is free from material patent and latent defects unless a contract of sale provides the contrary.
Defects can either be “patent” or “latent”.
Patent defect
A patent defect is one that can be seen with the naked eye. Before acquiring a property, the buyer usually inspects it to look for anything abnormal. What they look for with the naked eye are patent defects.
In the case of immovable property, it is possible to see walls that have cracks, shattered windows, broken doors, et cetera. These are patent defects that are noticeable upon reasonable inspection. In other words, casual inspection suffices for one to see the defect.
In the case of patent defects, parties to the agreement usually address the question of who shall be responsible for the costs of repair. The agreement of sale also addresses the issue. If the damages are captured in terms of the agreement, the seller has a strong evidentiary basis to argue that the purchaser was aware of the defect, hence allegations of concealment cannot be sustained.
Latent defects
Conversely, a latent defect is one that only an expert can identify. As much as someone can try to examine the property, they will not be able to identify such defects if they are not experts.
The defect would not be apparent to a reasonable person upon inspection of the property. In the case of immovable property, latent defects may include rising dampness, faulty pool pumps or geysers, rusty internal pipes and leaking roofs. Only an expert can be able to flag these issues. Some of the latent defects will manifest themselves as the merx is used shortly after conclusion of the contract of sale.
Because latent defects are very difficult for a buyer to discover, caveat emptor does not apply. Caveat emptor is a common law doctrine that places the burden on buyers to reasonably examine the property before making a purchase.
A buyer who fails to meet this burden is unable to recover for defects in the product that would have been discovered.
If the latent defect was not known to the seller, they cannot be held liable for the defect. However, if it can be proven that the seller knew of the defect and deliberately failed to disclose it, they may be held liable.
A number of sellers are aware of the challenges occasioned by latent defects in a property transaction, hence the inclusion of the “voetstoots clause” in the purchase/sale agreement.
“Voetstoots” speaks to a sale in which the seller is freed from all responsibility for the conditions of the goods being sold. The term “voetstoots” originated from Afrikaans. It literally means “as it is”.
The voetstoots clause is meant to protect the seller against all defects in the property, including all latent defects that are unknown to the seller.
The seller has a legal duty to disclose to the purchaser any latent defects on the property at the time of concluding and signing the offer to purchase/sale agreement.
The voetstoots clause is not meant to protect a seller who fraudulently conceals latent defects in the property they are selling.
If the seller was aware of a latent defect and deliberately concealed this from the purchaser, the latter will then have a right of recourse against the former. A seller is deprived of the protection of a voetstoots clause in circumstances where they perpetrated a fraudulent non-disclosure.
However, should a defect be identified after the sale of the property is concluded, the onus is on the purchaser to prove that the seller was aware of the defect and that he or she fraudulently/deliberately concealed this from the purchaser while concluding the transaction.
To ascertain whether the seller deliberately concealed the defect, the court will look at objective factors. If it is found that the seller was, in fact, fraudulent, he or she may be required to refund part of the purchase price or rectify the defect in question.
In reality, however, it is onerous for the purchaser to prove that the seller was aware and deliberately concealed this from the purchaser.
An implied warranty against latent defects is usually read into every contract of sale unless parties exclude it.
The law assumes that the merx is sold free from defects that make it unfit for the purpose (ordinary or specific) sold or bought for.
This warranty makes the seller liable for latent defects, even if he or she was unaware of the latent defect and did not act in bad faith.
To be continued . . .
LEGAL DISCLAIMER: The material contained in this article 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 article. 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 practising law in Harare. 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 [email protected]
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