If you have shopped around for a home inspection in South Africa, you have probably read that the voetstoots clause fell away on 1 February 2022. It is a good line. It is also wrong, and believing it can cost a buyer their remedy.

What the law actually says

The Property Practitioners Act 22 of 2019 came into operation on 1 February 2022 and replaced the Estate Agency Affairs Act of 1976. Section 67 introduced the Mandatory Disclosure Form. In short, it requires that a property practitioner must not accept a mandate unless the seller or lessor has provided a fully completed and signed mandatory disclosure in the prescribed form, and must give a copy to a prospective purchaser or lessee before they make an offer.

The completed form is signed by all relevant parties and attached to the sale or lease agreement, forming an integral part of it. If no form is completed, signed or attached, the agreement must be interpreted as if no defects or deficiencies were disclosed to the purchaser. A property practitioner who fails to obtain the form, or having obtained it fails to hand it over, may be held liable by the affected consumer.

Where the “voetstoots is dead” claim breaks

Nowhere in that does the Act repeal voetstoots. Adams & Adams put it directly: section 67 does not repeal the common law principle of voetstoots, and a purchaser still has a duty to inspect a property and identify the patent defects. The provision was implemented to enhance the voetstoots principle by compelling the practitioner to help both parties meet the obligations it already imposes.

Attorneys have been saying the same thing since the Act commenced. Da Costa Attorneys describe the belief that a property can no longer be sold voetstoots as a misconception, noting that the disclosure form does not exempt a purchaser from thoroughly inspecting the property, because the seller may not be aware of some existing defects.

Two further points worth holding on to. Goldman Schultz note that in a typical private sale a properly worded voetstoots clause is enforceable, that the mandatory disclosure form is not a technical report, and that it does not replace voetstoots. And Da Costa Attorneys point out that the obligation sits on the practitioner: it is not a blanket requirement in every transaction, so a genuinely private sale may involve no disclosure form at all.

The sentence in the form that nobody quotes

Here is the part that matters most to a buyer. Regulation 36.1 prescribes the format of the disclosure form, and the prescribed wording includes a disclaimer:

The report does not constitute a guarantee or warranty of any kind by the owner or by the property practitioners representing that owner, and should not be regarded as a substitute for any inspections or warranties that prospective purchasers may wish to obtain before concluding an agreement of sale.Wording prescribed in Regulation 36.1 — as summarised by Snyman de Jager Attorneys

Property24 reported the same thing recently: the prescribed form expressly states that it is not a guarantee or warranty and is not a replacement for an independent property inspection.

So the disclosure form is not a survey. It is a record of what the seller says they know. It cannot describe a defect the seller has never noticed, and it carries, in its own text, an instruction to get the property inspected anyway.

Patent and latent — the distinction that decides your case

South African law separates two kinds of defect. A patent defect is one that is not hidden and ought to be easily identified on reasonable inspection — a cracked wall, a broken window. A latent defect is a fault that a reasonable inspection would not readily reveal.

Under a voetstoots clause the seller is generally shielded from liability for latent defects, unless they knew about the defect and deliberately concealed it or made a fraudulent misrepresentation. The clause does not protect a seller who intentionally hides a known problem.

That is why the inspection matters in both directions. Patent defects are treated as accepted once you buy, so you want them found and priced before you sign. And where a seller has painted over damp or plastered over a moving crack, an inspection is what turns “I feel misled” into a documented, dated observation.

What to actually do

• Read the disclosure form properly. Then read the disclaimer on it. It is telling you to inspect.
• Get the inspection before the offer, or make the offer subject to it. Once you have signed and the patent defects are visible, your position weakens considerably.
• Keep the report. A dated, photographed record of condition at the time of sale is the single most useful document in any later dispute.
• Do not treat a private sale as safer. Where no practitioner is involved, there may be no disclosure form at all.

The change in 2022 was real and it was good for buyers. It just was not the change most of the industry is describing.

This article is general information about South African property law and is not legal advice. For advice on a specific transaction, speak to a conveyancing attorney.

Sources

1. Property Practitioners Act 22 of 2019 unpacked: Mandatory disclosure forms — Cliffe Dekker Hofmeyr
2. What to know about a property condition before signing the agreement — Adams & Adams
3. Can a property still be sold “Voetstoots”? — Da Costa Attorneys
4. Property Practitioners Act, 22 of 2019 (Regulation 36.1 wording) — Snyman de Jager Attorneys
5. What you need to know about the mandatory disclosure forms — Meumann White Inc
6. Voetstoots clause: who pays for hidden property defects? — Property24
7. Understanding voetstoots in property transactions — Goldman Schultz
8. Understanding voetstoots in South Africa — Gawie le Roux Institute of Law