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WCLawyer, Attorney
Category: South Africa Law
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Experience:  L.LB (UOVS)
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I signed an offer to purchase for a sectional title with an

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I signed an offer to purchase for a sectional title with an estate agency that has a voetstoots clause and without a clause for the CPA. After signing and securing a bond for the property I had an inspection done on the property and some defects were discovered particularly relating to a defective drainage system resulting in moisture at the bottom of some walls. I have since written to the agency and I have given them until Friday, 23-08-2013 (i.e. two working days) to respond but I have not yet received a response to my email. The email is to try to get a commitment in writing that the defects will be sorted out by the seller before I take occupation. The seller is a developer and therefore not a private seller.

As I understand all non-private property sales should have a clause for the CPA and all defects should be disclosed even if there is a voetstoots clause in the offer to purchase. Is this correct?
The bank has already sent my documentation to the attorneys but I have not yet signed for the property transfer and bond registration which will be handled by the same lawyers. I am still waiting the response from the seller/estate agency before I go ahead.

Did I sign away all my rights when I signed that contract or is there anything I can still do to get the offer to purchase amended and to still make the seller pay for the defects?
Submitted: 1 year ago.
Category: South Africa Law
Expert:  WCLawyer replied 1 year ago.
Good day.

1. There is, at the moment, a little bit of uncertainty as to whether the Consumer Protection Act is applicable or not where sale of an immovable property is concerned. The reason for that is that the Consumer Protection Act is only applicable where the transaction has been done in the normal course of the business of the supplier. Some attorneys argue that, where an agent is involved, the CPA will have effect and some believe that, because this is only an agent and the owner is not in the business of selling houses, the CPA will not be applicable. I belong to the former school, however, until a court decides, we are simply not sure at the moment.
2. Should the CPA be applicable, the following would apply:
The Consumer Protection Act makes provision for an implied warranty on all goods purchased by a consumer from a supplier where the transaction has been concluded in the normal course of the business of the supplier. In other words, if it is a once off transaction for the person selling, the Consumer Protection Act is not applicable.

Section 55 of the Act reads as follows and gives the consumer the right to safe, good quality goods:

55. Consumer’s rights to safe, good quality goods.—(1) This section does not apply to goods bought at an auction, as contemplated in section 45.
(2) Except to the extent contemplated in subsection (6), every consumer has a right to receive goods that—
(a) are reasonably suitable for the purposes for which they are generally intended;
(b) are of good quality, in good working order and free of any defects;
(c) will be usable and durable for a reasonable period of time, having regard to the use to which they would normally be put and to all the surrounding circumstances of their supply; and
(d) comply with any applicable standards set under the Standards Act, 1993 (Act No. 29 of 1993), or any other public regulation.
(3) In addition to the right set out in subsection (2) (a), if a consumer has specifically informed the supplier of the particular purpose for which the consumer wishes to acquire any goods, or the use to which the consumer intends to apply those goods, and the supplier—
(a) ordinarily offers to supply such goods; or
(b) acts in a manner consistent with being knowledgeable about the use of those goods,
the consumer has a right to expect that the goods are reasonably suitable for the specific purpose that the consumer has indicated.
(4) In determining whether any particular goods satisfied the requirements of subsection (2) or (3), all of the circumstances of the supply of those goods must be considered, including but not limited to—
(a) the manner in which, and the purposes for which, the goods were marketed, packaged and displayed, the use of any trade description or mark, any instructions for, or warnings with respect to the use of the goods;
(b) the range of things that might reasonably be anticipated to be done with or in relation to the goods; and
(c) the time when the goods were produced and supplied.
(5) For greater certainty in applying subsection (4)—
(a) it is irrelevant whether a product failure or defect was latent or patent, or whether it could have been detected by a consumer before taking delivery of the goods; and
(b) a product failure or defect may not be inferred in respect of particular goods solely on the grounds that better goods have subsequently become available from the same or any other producer or supplier.
(6) Subsection (2) (a) and (b) do not apply to a transaction if the consumer—
(a) has been expressly informed that particular goods were offered in a specific condition; and
(b) has expressly agreed to accept the goods in that condition, or knowingly acted in a manner consistent with accepting the goods in that condition.

Section 56 state that you have a six month guarantee that the item will comply with the basic standard that is required by section 55. It reads as follows:

56. Implied warranty of quality.—(1) In any transaction or agreement pertaining to the supply of goods to a consumer there is an implied provision that the producer or importer, the distributor and the retailer each warrant that the goods comply with the requirements and standards contemplated in section 55, except to the extent that those goods have been altered contrary to the instructions, or after leaving the control, of the producer or importer, a distributor or the retailer, as the case may be.
(2) Within six months after the delivery of any goods to a consumer, the consumer may return the goods to the supplier, without penalty and at the supplier’s risk and expense, if the goods fail to satisfy the requirements and standards contemplated in section 55, and the supplier must, at the direction of the consumer, either—
(a) repair or replace the failed, unsafe or defective goods; or
(b) refund to the consumer the price paid by the consumer, for the goods.
(3) If a supplier repairs any particular goods or any component of any such goods, and within three months after that repair, the failure, defect or unsafe feature has not been remedied, or a further failure, defect or unsafe feature is discovered, the supplier must—
(a) replace the goods; or
(b) refund to the consumer the price paid by the consumer for the goods.
(4) The implied warranty imposed by subsection (1), and the right to return goods set out in subsection (2), are each in addition to—
(a) any other implied warranty or condition imposed by the common law, this Act or any other public regulation; and
(b) any express warranty or condition stipulated by the producer or importer, distributor or retailer, as the case may be.

In your instance, because it is a house, replace is not an option, which leaves you with repair or refund. In other words, you can demand that they fix the defects.
3. Where the CPA is not applicable, the voetstoots clause will stand and the following will be applicable:
In order to explain the working of the voetstoots clause, we need to distinguish between patent and latent defects. Patent defects is defects that is immediately visible, or visible after a thorough inspection of the item. Latent defects is defects that existed, but could not be seen so easily. It must be noted that we are talking about defects that existed when the agreement has been concluded and not defects that came into existence after the transaction has been concluded. Also, you should note that there is a difference between a defect that exists and a defect that manifests itself. For example, a smoke alarm can be defective before the conclusion of the sale, but the mistake only manifests itself if the thing does not go off.

When an agreement is concluded voetstoots, it means that the seller does not take responsibility for any of the latent or patent defects that existed at the time that the transaction was concluded. This means that all risk passes to the seller as soon as he pays for the thing.

A seller cannot claim voetstoots for latent defects if the seller knew of the defects and deliberately conceals the defect, so as to entice the buyer to buy. The burden of proof is, however, on you to prove this. You must, in other words, prove that the defects existed at the time of the sale, that the seller deliberately concealed it and that he did so because he knew you were not going to buy, or were going to buy at a reduced price, if the defects were made known to you.

Only if you can prove this, can you hold the seller liable for those defects.

I hope this answers your question, but if you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service, kindly rate it positively. I do not get anything unless you rate the service
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15008
Experience: L.LB (UOVS)
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