South Africa Law

Get Your South African Law Questions Answered by Experts

Ask a Lawyer,
Get an Answer ASAP!

South Africa Law
This answer was rated:

I signed an offer to purchase for a sectional title with an

estate agency that has a...
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?
Show More
Show Less
Ask Your Own South Africa Law Question
Answered in 3 minutes by:
8/22/2013
WCLawyer
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15,603
Experience: L.LB (UOVS)
Verified
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
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15,603
Experience: L.LB (UOVS)
Verified
WCLawyer and 87 other South Africa Law Specialists are ready to help you
Ask your own question now
Ask WCLawyer Your Own Question
WCLawyer
WCLawyer
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15,603
15,603 Satisfied Customers
Experience: L.LB (UOVS)

WCLawyer is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

PHINEAS MOTAUNG

PHINEAS MOTAUNG

Attorney

113 satisfied customers

BACHELOR OF LAWS

Emil

Emil

Attorney

33 satisfied customers

BCom Law LLB, 3 years post article experience as attorney

LCP

LCP

Attorney

21 satisfied customers

BCom (Stell) LLB LLM

Freddie Lombard

Freddie Lombard

Attorney

2,686 satisfied customers

Practicing attorney and conveyancer with 16 years post article experience.

Shaie Zindel

Shaie Zindel

Attorney

1,248 satisfied customers

All areas of commercial and contract Law - specialist in property advice.

inciteadvisor

inciteadvisor

Commercial Lawyer

814 satisfied customers

B.Com LLB Registered Corporate lawywer

Christiaan K

Christiaan K

137 satisfied customers

Attorney & Director at Lombard Kotze Incorporated

< Previous | Next >

Related South Africa Law Questions
My neighbours decided to raise the boundary wall between our
My neighbours decided to raise the boundary wall between our properties. They did not contact me or consult me prior to building on the wall. When I appealed to the building inspector, he informed me … read more
JOHANN
JOHANN
Master's Degree
3,396 satisfied customers
Employees in administrative functions in the company were
Hi, Employees in administrative functions in the company were put on short time and a reduction of 10% of CTC in August this year. Now there is a restructure and various employees are being retrenched… read more
Freddie Lombard
Freddie Lombard
Attorney
Bachelor's Degree
2,686 satisfied customers
What are the terms of termination of the Contractor's
What are the terms of termination of the Contractor's Contract, in the FIDIC Contract - (I.E.) - 1) Notice time - 2) - Are the notice times - 3) Can it be immediate, etc, etc, etc. - … read more
Freddie Lombard
Freddie Lombard
Attorney
Bachelor's Degree
2,686 satisfied customers
I need your legal advise about the following: There is a
Dear Lawyer I need your legal advise about the following: There is a rental property agent who is forcing me to pay for penalties of three month rental and deposit whereas I did not sign any lease agr… read more
Freddie Lombard
Freddie Lombard
Attorney
Bachelor's Degree
2,686 satisfied customers
Thought I was chatting to Tina, anyways let's see how this
Thought I was chatting to Tina, anyways let's see how this goes first time around... Got a section 65(1) to appear on December 5, debt is from 2012 when I got divorced in high-court and involves bill … read more
Christiaan K
Christiaan K
LLB
137 satisfied customers
My son was mob attacked outside Mc Donald's Northgate on the
My son was mob attacked outside Mc Donald's Northgate on the 1st Oct 17. Video footage shows private security company, jmpd and Saps were on the scene prior to his arrival. He walked slap bang into th… read more
CaseLaw
CaseLaw
Attorney
Bachelor's Degree
785 satisfied customers
I have a big problem, and am unable to resolve the matter I
Good morning, I have a big problem, and am unable to resolve the matter I have made a payment to Dions Wired, via Internet, on 20 October 2017 … read more
Freddie Lombard
Freddie Lombard
Attorney
Bachelor's Degree
2,686 satisfied customers
Mr Price mobile has offered me a SIM card a couple of months
Hi there. Mr Price mobile has offered me a SIM card a couple of months ago. The lady told me all the advantages, which i then declined because i told her i am not employed. She then continued trying t… read more
Christiaan K
Christiaan K
LLB
137 satisfied customers
I have a quick question. I bought property (vacant stand) on
I have a quick question. I bought property (vacant stand) on line and the ad and boards stated that the property is a security complex. I specifically bought the property for that purpose. I then discovered that it is not the case. It is 13 properties that has wire fence the hight of your middle with big trees, a gate that does not close. further the "estate agent" told me to pay a levy every month of R220 which I did and then I discovered that there was never a home owners assocciation registered at all and the guy is putting the money in his pocket … read more
Christiaan K
Christiaan K
LLB
137 satisfied customers
It's gavin here again, regarding the emotional blackmail and
It's gavin here again, regarding the emotional blackmail and extortion. I had to transfer money to various different accounts! And I have all those account details. I have only been communicating with… read more
Freddie Lombard
Freddie Lombard
Attorney
Bachelor's Degree
2,686 satisfied customers
My husband deserted me then filed for a divorce.He gave the
My husband deserted me then filed for a divorce.He gave the sheriff a wrong address and he my husband has sent me an sms to collect documents from the sheriff's offices. What does the law say in colle… read more
Christiaan K
Christiaan K
LLB
137 satisfied customers
I was wondering if there is the possibility to make a power
Thank you, ***** ***** wondering if there is the possibility to make a power of attorney to represent me in the police station to sign for the child minor to leave the country with his mother. I am th… read more
Christiaan K
Christiaan K
LLB
137 satisfied customers
My Fiance and I have just parted company, issue is she owes
Hi, My Fiance and I have just parted company, issue is she owes me a substantial amount of money… read more
CaseLaw
CaseLaw
Attorney
Bachelor's Degree
785 satisfied customers
My father left a will which was signed by himself and two
my father left a will which was signed by himself and two witnesses. my brothers now allege it is a fraud … read more
CaseLaw
CaseLaw
Attorney
Bachelor's Degree
785 satisfied customers
I have a joint bond with my ex boyfriend. The house is
I have a joint bond with my ex boyfriend. The house is registered in both our names and so is the bond.Area: Johannesburg South Africa.4 months ago, my boyfriend of 14 years suddenly left me. He has b… read more
CaseLaw
CaseLaw
Attorney
Bachelor's Degree
785 satisfied customers
I sold my house and the transfer of ownership has been done.
Good evening, I sold my house and the transfer of ownership has been done. The new owners are complaining about the damp in some walls in the house and the want the me (the seller) to repair them. The… read more
CaseLaw
CaseLaw
Attorney
Bachelor's Degree
785 satisfied customers
I have a question on voice recording in South africa.
Hi. I have a question on voice recording in South africa. … read more
CaseLaw
CaseLaw
Attorney
Bachelor's Degree
785 satisfied customers
We a closing down and have advised the staff accordingly
Hi, we a closing down and have advised the staff accordingly that the company will be closing - are you required to pay a "retrenchment" package … read more
CaseLaw
CaseLaw
Attorney
Bachelor's Degree
785 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x