Defects in property transactions remain one of the leading causes of post-sale disputes in South Africa, often turning routine transfers into prolonged legal battles. At the centre of these conflicts is the voetstoots clause—a standard provision in most sale agreements that continues to raise questions about accountability, disclosure, and buyer protection.
Originally designed to shield sellers from liability for certain defects, the voetstoots clause has evolved into a highly contested feature of South African property law. Its application depends not only on what was wrong with the property, but also on what was known, disclosed, or deliberately concealed at the time of sale.
This legal grey area places significant pressure on buyers to understand their rights, and on sellers to meet their disclosure obligations. It also highlights the critical role of experienced property professionals in ensuring that neither party is left vulnerable after the ink has dried.
The voetstoots clause, derived from Roman-Dutch law, is a provision that allows a property to be sold “as is.” In practical terms, it means the buyer accepts the property in its current condition, including all visible and hidden defects that may exist at the time of sale. This clause is almost always included in South African sale agreements, particularly in residential property transactions.
Its primary purpose is to protect the seller from liability after transfer, provided there was no intent to conceal serious defects or mislead the buyer. In essence, it shifts the burden onto the purchaser to inspect the property thoroughly before signing the offer to purchase. However, this protection is not absolute, and its limitations are increasingly being tested in legal disputes.
When a voetstoots clause appears in a contract, it signals that the seller does not guarantee the condition of the property beyond what is already known or disclosed. It places the onus on the buyer to perform due diligence—physically inspecting the home, asking the right questions, and requesting clarification where necessary.
Critically, the clause does not excuse a seller who was aware of serious defects and deliberately failed to disclose them. South African courts have repeatedly held that fraudulent non-disclosure renders the voetstoots defence invalid. This means that while the clause offers substantial protection to honest sellers, it provides no cover to those who intentionally withhold information that would have influenced the buyer’s decision to proceed.
The inclusion of a voetstoots clause should never be seen as a shortcut to avoid transparency. It underscores the need for both parties to engage openly and for buyers to work with qualified property professionals who understand how to identify risks before they escalate into costly legal disputes.
By the time a buyer signs an Offer to Purchase, the voetstoots clause is often already embedded—standardised, unchallenged, and overlooked. Yet this is the most critical stage for scrutiny. Once signed, the document becomes legally binding, and the assumptions made in that moment can carry real financial risk.
Buyers should not only expect to see the clause but should know how it’s worded. The phrasing varies between contracts, and in some cases, sellers or developers may attempt to broaden its scope beyond what’s legally enforceable. This is where professional guidance becomes essential. A knowledgeable property agent can identify problematic wording, explain its implications clearly, and—where necessary—facilitate changes before the contract is finalised.
The Offer to Purchase is an administrative formality but, more importantly, it’s the legal anchor for every right and obligation that follows. Treating it as such is one of the most effective ways to prevent disputes, delays, or unexpected liabilities down the line.
Yes—almost all residential properties in South Africa are sold voetstoots by default, unless otherwise stated in the sale agreement. This is not a reflection of seller intent to avoid accountability, but rather a standard legal mechanism designed to simplify the transfer process and limit post-sale disputes.
However, the routine inclusion of this clause should not be mistaken for blanket protection. Its enforceability depends on whether the seller was acting in good faith and whether the buyer made a reasonable effort to inspect the property. As such, while the clause remains a legal norm, its weight in court is determined by context and conduct.
This underscores the importance of working with informed, ethical property professionals—people who understand not only the paperwork, but the real-world consequences of what’s written in it.
Understanding the distinction between latent and patent defects is central to assessing where liability falls in a property sale. The law treats these two categories very differently—and this is often where confusion arises for buyers.
These are flaws that are visible or reasonably easy to detect during a standard property viewing. These include issues like cracked tiles, broken windows, or sagging gutters. Because they are obvious, the law expects buyers to notice them. Once the sale is concluded, there is typically no recourse for complaints about defects that were—or should have been—evident at the time of inspection.
By contrast, latent defects are hidden faults that are not visible upon reasonable inspection. These may include rising damp behind freshly painted walls, a leaking roof that only shows itself during heavy rain, or faulty plumbing beneath the floor. These types of issues are where the voetstoots clause becomes contentious. If the seller genuinely did not know about the defect, the clause may protect them. But if it can be shown that the defect was known and concealed, the protection falls away.
In both cases, the best defence is knowledge. A qualified property professional can help buyers distinguish between the superficial and the structural, and ensure that sellers are advised on what must be disclosed before the agreement is signed.
Legal action against a seller after transfer is possible—but it is not guaranteed, and the burden of proof lies firmly with the buyer. To succeed, the buyer must demonstrate not only that a defect existed prior to the sale, but also that the seller was aware of it and failed to disclose it.
This is a high threshold, and not easily met. South African courts require clear evidence of the seller’s prior knowledge, and a direct link between that knowledge and the buyer’s resulting loss. In the absence of this, the voetstoots clause is likely to remain enforceable.
This is why comprehensive pre-sale inspections, full disclosure documents, and transparent communication are non-negotiables in a legally sound transaction. They not only reduce the risk of post-sale disputes, but also ensure that all parties walk away with their expectations met—and their rights protected.
Undisclosed defects are not defined by size or severity—they are defined by what the seller knew and failed to communicate. It is not the defect itself that triggers legal liability, but the concealment of that defect in a way that misleads the buyer.
The voetstoots clause does not offer blanket protection. There are clear legal limits to when and how it applies—both for sellers and for buyers.
South African courts have consistently held that the voetstoots clause cannot be used to shield a seller who has acted in bad faith. The clause is void in instances of:
In such cases, the court will often set aside the protection the clause might have offered and hold the seller liable for repair costs or damages.
While buyers are protected in cases of deception, the law also expects them to act responsibly. The voetstoots clause remains enforceable when:
This reinforces the importance of due diligence. A buyer who rushes into an agreement without inspecting the property, reviewing documentation, or asking the right questions may find themselves with limited options if problems arise later.
The voetstoots clause is not where problems begin. It’s where uncertainty begins to matter. Once the offer is signed and the transfer is underway, your options narrow—and what wasn’t asked, checked, or disclosed becomes a source of stress, risk, and regret.
At Cornell Horn Properties, we don’t believe in ticking boxes. We believe in asking the uncomfortable questions before they become expensive ones. We believe sellers deserve clarity on their legal responsibilities, and buyers deserve to know exactly what they’re walking into—before they walk through the front door.
Our role is not just to facilitate a sale. It’s to safeguard your outcome.
Contact us for professional, efficient, and legal assistance with your property sale in Cape Town.
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