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Very often we hear people say that the “voetstoots” clause is no longer applicable to property transactions. But this is simply not true.

The “voetstoots” clause is still alive and well in all private once off property transactions.

(Sidenote: The word “Voetstoots” is Dutch in origin and means “sold as is” or “sold as it stands”. This legal term is for the protection of the Seller against liability for patent or latent defects.

A patent defect is one which is obvious and easily seen with reasonable inspection, like a broken window or crack in the wall. A latent defect is one which is hidden and not easily seen, like a leaking roof or hidden damp.)

What does this mean?

The Consumer Protection Act 68 of 2008 (CPA) which commenced on 01 April 2008 applies only to specific transactions. The Seller must be defined as a ‘Supplier’ being ‘a person who sells or markets goods or services in the ordinary course of his business for consideration’. The Purchaser must be defined as a ‘Consumer’ being ‘a person who receives goods or services from a supplier who sells such goods or services in the ordinary course of his business’.

This means that Sellers of property in ‘once-off’ transactions and not ‘in the ordinary course of his business’, will not be regarded as Suppliers as provided for in the CPA and will such a transaction be excluded from its provisions. Therefore, the ‘voetstoots’ clause will be applicable and the Consumer remedies in the CPA will not.

Should the Seller be a Developer who’s ‘ordinary course of business’ is to build and sell property, it will place the Seller within the definition of a ‘Supplier’ and will the CPA be applicable. The Seller will not be able to rely on the protection of the ‘Voetstoots’ clause and will the remedies of the CPA be available to the Purchaser.

The CPA provides that ‘every consumer has a right to receive goods that are reasonably suitable for the purposes for which they are generally intended, are of good quality, in good working order and free of any defects, and will be usable and durable for a reasonable period of time’. However, this provision will not apply where the Consumer has been expressly advised that the goods were offered in a specific condition and the Consumer has agreed to accept the goods in that condition. It has become common practice for the Developer to include a list of defects in the deed of sale which will protect him from liability of such defects.