Pre-sale inspections, coupled with the abolition of the Voetstoots clause, are currently the only way to offer private property buyers adequate protection in the absence of consumer protection that should be afforded to home buyers under the CPA. Home Real Estate « Real Estate Law » The Voetstoots clause and what it means for buyers and sellers of real estate, it is in the interest of both parties to sign a disclosure document. However, if the seller refuses, the buyer should insist that an additional clause be added to the sales contract for defects admitted after the transaction is concluded. A seller can only invoke the Voetstoots clause if the seller is not aware of a latent defect. Thus, it is up to the buyer to prove that the seller knew or should have known that the defect was present and that the seller did not fraudulently conceal it. Sellers are legally required to disclose the latent property defects they are aware of. In order for the Voetstoots clause to be repealed, buyers must prove that the sellers were aware of the latent defects and deliberately concealed them with the intention of misleading the buyers. Indeed, the seller of real estate is responsible for a latent defect, regardless of the Voetstoots clause, if the seller was aware of the defect of the land for sale and he had not informed the potential buyer of these defects. This omission is almost akin to fraud. In summary, when a seller wishes to sell real estate privately, including the Voetstoots clause, he is required to disclose all defects of the property he knows. A seller can further weaken potential liability by adding a conditional report to the sales contract. The status report would essentially be the seller, who outlines the quality of the property and lists all the defects.
« If a buyer wants to avoid the consequences of a Sale of Voetstoots, he must not only prove that the seller was aware of the latent defect and did not disclose it, but also that he deliberately concealed it with the intention of defrauding. » At present, and pending the amendment to the CPA, the only way out of the risk that an inefficient (limited) CPA will pose to the buyer is that the buyer removes the Voetstoots clause from the offer and has a clause subordinating the offer to the buyer accepting the deficiencies documented in a professional inspection report. It is important that not all buyers benefit from CPA protection. For the purposes of paragraph 5, paragraph 2, the law does not apply to a transaction if a consumer/buyer is a legal entity with an asset or annual turnover greater than R2,000,000 (two million rand). A sale agreement between a seller and a buyer with an annual turnover of more than R2,000,000 (two million rand) may include a voetstoots clause, since this transaction has no protection under the CPA.