VOESTOOT V WARRANTY: ITS SUB-ZERO & SCORPION

Understanding Voetstoots vs Warranty in South African Law

When you’re buying or selling property—or any goods—in South Africa, you’ll often encounter two legal mechanisms that govern risk and liability: the voetstoots clause and warranties. Though they both deal with defects and seller liability, they operate in fundamentally different ways. This post unpacks each concept, highlights their key distinctions, and offers practical takeaways for buyers and sellers.

What Is the Voetstoots Clause?

The term “voetstoots” is Dutch for “with a shove of the foot,” and in South African law it literally means “sold as is". As you can see the South African application of the terms has nothing to do with "shoving dude of the foot". This was not Roman Dutch's law best formulation of legal concept. When a property sale agreement includes a voetstoots clause, the buyer accepts the property in its existing condition, visible or hidden, and assumes the risk of any defects unless the seller knew of and concealed them deliberately. There is no defence if the buyer proves that seller knew. Now the standard of proof would have to be furnished on a balance of probabilities. The buyer version must be essentilly more likely than the sellers version. All sale agreements carry an implied warranty that the item sold is free from defects. The voetstoots clause effectively contracts out of that warranty, protecting the seller from liability for patent (visible) and latent (hidden) defects, provided the seller was neither aware of nor fraudulent about those defects .

Application and Limitations of Voetstoots

• Fraud and Deliberate Concealment A seller cannot rely on voetstoots if they knew about a latent defect and intentionally hid it from the buyer. South African courts have refused to uphold the clause in cases of fraudulent misrepresentation.

• Consumer Protection Act (CPA) Restrictions Under the CPA, sellers who operate “in the ordinary course of business,” such as property developers or estate agents, cannot exclude liability for defects through a voetstoots clause. Private sellers, by contrast, retain this protection unless fraud is proven.

  
  

What Is a Warranty?

A warranty is a contractual promise or legal assurance by the seller (or manufacturer) that the goods sold meet specific standards or conditions. If those assurances fail—say, a structural element collapses or an appliance malfunctions—the buyer can claim remedies, often supported by an indemnity to cover losses caused by the breach.

Warranties differ from voetstoots clauses in that they actively impose liability on the seller for certain defects, rather than merely allocating risk to the buyer.

Types and Scope of Warranties in Property Transactions

1. Implied Warranty under the CPA Section 56(2) of the CPA allows consumers to return defective goods within six months of delivery—without penalty—for repair, replacement, or a full refund at the supplier’s expense.

2. Statutory New‐Home Warranty (NHBRC) Governed by the Housing Consumers Protection Measures Act and administered by the NHBRC, new‐home warranties include:

   • Five‐year structural defect cover

   • One‐year roof‐leak cover

   • Three‐month snag‐list cover for minor finishing issues These warranties apply only if the builder is NHBRC‐registered and the home was built post-October 1999.

3. Contractual Warranties Developers or private sellers may offer bespoke warranties—such as guarantees on plumbing, electrical work, appliances, or pest treatment. To be effective, they must be:

   • Clearly written into the sale agreement

   • Backed by reputable insurers or service providers.

     
     

Takeaways for Buyers and Sellers

• For Buyers Always conduct thorough inspections, request seller disclosures, and read all clauses carefully. Verify NHBRC registration for new homes and keep written warranties handy.

• For Sellers Disclose all known defects—literal or statutory—to preserve the protection of a voetstoots clause. When offering warranties, clearly define scope, duration, and remedies in writing to avoid disputes.

Understanding the interplay between voetstoots and warranties empowers both buyers and sellers to navigate property transactions—and other sales—with confidence. Whether you’re accepting an “as is” sale or relying on a robust warranty, clarity about rights and obligations is the foundation of a fair and transparent marketplace

DISCLAIMEER: THIS IS MERELY AN INFORMAL LEGAL OPINION. THIS IS NOT AUTHORITY FOR HOW THE APPLICATION OF THE RELEVANT LEGAL PRINCIPLES AND STATUTES ARE APPLIED. THESE TOPICS ARE A PRODUCT OF IDEAS GENERATED IN MY MIND, WHICH ARE FORMULATED BY CURIOSITY OR INTEREST IN THE THEMES. THIS DOES NOT SERVE AS LEGAL ADVISE. ALWAYS CONSULT AN ATTORNEY. THIS DOES NOT SERVE AS LEGAL ADVISE