Most fixed property deeds of sale contain a voetstoots clause. This clause provides that the seller is not liable for any latent or hidden defects. Does this mean that a seller in South Africa can no longer be sued for such hidden defects even if he was aware of them? In other words, the owner is aware of the defect but protects himself against any claim by inserting a voetstoots clause in his contract. Is this valid?
The voetstoots clause is misused by many sellers and also misunderstood and misinterpreted. The voetstoots clause only protects the seller against defects that he was not aware of and that he could not reasonably have foreseen. If the seller knows of a defect he has a duty to reveal the defect to the buyer and the voetstoots clause only protects him against a claim in respect of that defect if he revealed the defect to the buyer before the sale.
One of the legal exceptions to a voetstoots clause is that, should the buyer be able to prove that the seller was aware of the defects and hid them fraudulently, the buyer can claim damages for the defect from the buyer even though there was a voetstoots clause.
For example: The seller lived in the house with a leaking roof for 10 years. In this case the buyer can easily prove that the seller must have been aware of the leaking roof but hid it from the buyer in a fraudulent way. In this case the voetstoots clause will not protect the seller and the buyer can recover the damages from the seller.