South Eastern Cape Local Division
1994 March 11; June 15
Case No 2903/93
Summary of Case
Contract containing voetstoots clause - Seller entitled to rely thereon but only to extent that he has acted honestly - Operation of clause accordingly confined to cover latent defects not deliberately concealed by seller in order to induce contract.
Brief Description of Case
In terms of a written agreement of sale, the defendant
(the Seller) sold voetstoots a certain immovable property to the plaintiff (the Buyer)
for R165 000. The plaintiff answered that, unbeknown to
him, the property had been latently defective at the time
of the sale; that the defendant deliberately had concealed
the said defects, alternatively had failed to disclose
the existence thereof to the plaintiff, with the intention
of inducing the plaintiff nonetheless to purchase the
said property; and that the defendant had in doing so
acted fraudulently. The plaintiff further alleged that
he would not have bought the property had he been aware
of the defects, and tendered the return thereof to the
The Judge's Ruling
Held, that... what had to be decided was what the
effect of fraud was on a terms of contract that would
otherwise exempt a party from liability. (A1 373D-D/E)
Held, further, that……the law will not recognize an
undertaking by which one of the contracting parties binds
himself to condone and submit to the fraudulent conduct
of the other; a voetstoots clause was not 'thought away'
when a purchase raised the fraudulent concealment of a
latent defect; rather, the clause remained but the seller
was entitled to rely thereon only to the extent that he
had acted honestly. (At 373 E -F and G-G/H)
The judge referred to an earlier case in which it was stated: '...a seller who was aware of a defect will not be excused by the fact that at the time of sale he... declared that he was selling the thing such as it is, and that he did not wish to be held liable for its defects...'
Held, further, that the operation of the voetstoots clause was thus confined to cover those latent defects which the seller did not deliberately conceal in order to induce the contract. (At 373 G/H-H)
The Judgment was therefore against the Seller, with costs.