The CPA – the voetstoets clause

Private Property South Africa
Ismael Laher

The new consumer rights created by the Consumer Protection Act (CPA) will prevent the sale of property voetstoets when that sale occurs in the ordinary course of business. Voetstoets is the sale of something as it is, with all defects included regardless of whether the purchaser knows of them or not. In terms of the CPA, a purchaser has the right to expect that the property is reasonably suitable for the purposes for which it is generally intended, is of good quality, in good working order and free of any defects, will be useable and durable for a reasonable period of time and, having regard to the use towhich the property is put and the surrounding circumstances of the sale, complies with any applicable regulatory standards.

This does not, however, apply to a transaction if the purchaser has been expressly informed that the particular property was offered in a specific condition and the purchaser has agreed to accept the property in that condition. Whilst this seems to allow for the voetstoets clauses, it requires the seller to specify to the purchaser what the condition of the property is and to inform the purchaser of defects. The purchaser is them made aware of defects in the property and can make an informed decision whether or not to purchase the property with these defects or deficiencies. The allowable defects in the property will then only be those specified defects and any other defects will be excluded. Any such excluded defects found after the purchase will be the responsibility of the seller.

This means that the purchaser will have the right to receive the property purchased in the ordinary course of business free of defects unless those defects are specifically relayed to the purchaser. Accordingly, sellers of property that has serious undisclosed defects will no longer be able to rely on the voetstoets clause in actions instituted against them by a purchaser unless they have specifically informed the purchaser of the defects in question. Furthermore, the purchaser will only be able to require the seller to either remedy any defect in the property or refund a reasonable and proportionate portion of the purchase price to the purchaser, having regard to the defect requiring remedy.

Should the property not meet to these standards, the purchaser has up to six months after delivery to request that the seller, at the option of the purchaser, either repair or replace the property or refund the purchase price.

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