Author: Maryna Botha – STBB
3 September 2018
VOETSTOOTS, WARRANTIES, THE SELLER’S RESPONSIBILITIES
VAN ROOYEN V BROWN AND ANOTHER (A3104/2015)  ZAGPJHC 453 (28 JUNE 2018)
This judgment again illustrates how important it is for the seller of a home to be as candid as possible about patent defects that he knows of, failing which he risks being held liable to the purchaser for damages. Of interest in this judgment too is the consequences of granting a warranty with regards to the condition of fixtures and fittings: Where a fixture becomes defective within a month after the sale, a seller may, in certain circumstances, be held liable.
SUMMARY OF JUDGMENT
Towards the end of 2010, Van Rooyen put her house on the market for R3,6 million with the assistance of an estate agent. Mr and Mrs Brown made an offer, but it was rejected. Only when the selling price was later dropped to R2,3 million, after an unsuccessful private auction, was a further offer from the Browns accepted.
Prior to signing the sale agreement, the Browns inspected the property. (It remained unclear in court whether they visited the house once, signed and then visited it again on two or three occasions or that there were two or three occasions of their visit before they signed. All such visits were only in the presence of the agent.)
The sale agreement specifically made provision for: (i) a warranty in respect of fixtures and fittings (which included the pool pump and filter and electric fencing); (ii) that the sale was voetstoots; (iii) that the seller shall provide a valid electrical certificate of compliance to the purchaser and would also be liable for the costs of any repair work required for the issue of the certificate, prior to registration of transfer.
After the Browns had taken occupation, they discovered a number of defects which they argued had not been apparent at the time of viewing the property and which were not pointed out to them by either Van Rooyen or the agent and/or were deliberately withheld from them by Van Rooyen and/or her agent. They also contended that they discovered that the property was not electrically compliant and that the Electrical Compliance Certificate presented to them by Van Rooyen was invalid. Further, they contended that they discovered, upon taking occupation, that the pool pump and filter were not in a good working order as warranted. As a result of these and other defects* (*Editor’s notes: not all of the defects are listed in this summary) and the breach of warranty, the Browns claimed damages from van Rooyen. These damages included, amongst others:
- Re the Electrical Compliance Certificate: the purchasers suffered damages when the relevant electrician engaged by Van Rooyen failed to correct the defects after the certificate was issued. The Browns had to employ the services of another electrician to correct various defects in order for such electrician to provide a valid Electrical Compliance Certificate.
- Rethe warranty in respect of fixtures and fittings: Upon collecting the keys of the property, Van Rooyen showed the energizer for the electric fence to the Browns and advised them not to touch the board as it had shocked her gardener a few times. The Browns thereafter learned that the whole energizer had to be replaced. The alarm could in any event not activate. Regarding the pool filter and the automatic pool cleaner: The Browns testified that after taking occupation it came to their attention that the pool pump and the filter were not working as they should have and eventually stopped working. A pool expert found, amongst other things, that the entire pool filter and pump had to be replaced as neither were in working order. The damage to the pool pump was due to years of wear and tear.
The Magistrates’ Court found in favour of the Browns and Van Rooyen was ordered to pay the costs of repairs.
The present matter deals with Van Rooyen’s appeal. She argued that:
1) She was protected by the voetstoots clause and that she could not be held responsible for any defects in the property. The buyers had an opportunity to inspect the property before buying it and that therefore, against patent defects, the buyers had no recourse against her.
2) In respect of the electric fence, she argued that the fence had a latent defect which she was unaware of; as the fence made ticking sounds, she thought it was working.
3) In respect of the pool pump and the filter, she acknowledges that she warranted that these were in normal working order but that could not include a warranty against every day wear and tear.
4) On the electrical compliance certificate, Van Rooyen secured the services of an electrician who had issued a certificate on the strength of which transfer of ownership of the house was effected. Notwithstanding their reservations, the Browns accepted the certificate of compliance and allowed the property to be transferred.
Although Van Rooyen disputed every fact pertaining to the defects pleaded by the Browns, she did not challenge the evidence tendered by the Browns’ witnesses.
- It is accepted that “voetstoots” is the action of buying something “as is” and the seller may not be held responsible for any defects in respect of the merx (the thing sold).
- A seller can hide behind the voetstoots clause only where the seller was not aware of the defects and as such did not conceal them from the purchaser, or where no warranty – expressly, impliedly or tacitly – was given to the purchaser by the seller.
- It remains the duty of the seller to deliver the thing (merx) sold to the buyer without defects. Where the merx is latently defective, delivery is not considered to be in accordance with the contract if the seller fraudulently conceals the defect in the merx sold or where the seller gives an express warranty that the thing sold is free of the particular defect.
- For the buyer to get around the seller’s exemption in such circumstances through the voetstoots clause, he or she would have to prove that the seller at the time of the conclusion of the contract was aware of the existence of the latent defect in the merx sold and deliberately concealed the existence of the defect to the purchaser or refrained from informing the purchaser of its existence.
- On an evaluation of the facts submitted to Court:
The voetstoots defence
- The existence of the defects had become common cause between the parties as well as the fact that they were not shown or disclosed to the Browns. There was no evidence to corroborate the seller’s version that the defects were readily visible. (For example, it is on record that the leaking thatch roofs and walls could only be detected on a rainy day and there was no evidence that the Browns came on a rainy day to inspect the property.) The seller also failed to demonstrate her bona fides in not disclosing these defects and therefore the appeal fell to be dismissed on this ground.
The electric fence
- Van Rooyen submitted that the fence had a latent defect which she was unaware of since it made ticking sounds which made her think that it was working well. Upon collecting the keys of the property, she showed the Browns the energizer for the electric fence and then advised them not to touch it as it had shocked her gardener a few times. This was vital information which was not communicated to them when they came to inspect the property before signing the agreement. Inasmuch as the seller was no expert on electric fences, she had important information about a defect in the fence which on a number of occasions had shocked a human being. No innocent explanation was proffered by her why this dangerous situation was not explained to the purchasers at the critical decision making period on whether or not to buy the property. The only reasonable inference to draw from this is that the seller deliberately concealed this information. The appeal fell to be dismissed on this ground as well.
The pool pump and the pool filter
- The Browns testified that after taking occupation of the property they noticed that the pool pump and filter were not working as they should have and eventually stopped working. It transpired that the entire pool filter and pump had to be replaced. The damage was due to wear and tear and years of being used. Clearly therefore the warranty given by the seller was not good enough to serve the purpose for which it was intended: The pump and the filter showed years of wear and tear and this defect was discovered within a month after the Browns moved into the property. This ground of appeal lacked merits and should therefore also fail.
The electrical compliance certificate
- The Electrical Compliance Certificate provided by Van Rooyen to the Browns was invalid and the electrician engaged by Van Rooyen failed to correct the faults subsequently. Failure to provide a valid electrical compliance certificate was a clear breach of the contractual term in this regard and the breach was not limited to time before the transfer. This ground of appeal stood to be dismissed.
The appeal was accordingly dismissed with costs.
The Judgment can be viewed here: