TYPE OF DEFECTS (LATENT AND PATENT DEFECTS)

The seller has a duty to deliver his / her property free from defects. In any defect case, one needs to consider two critical things: first, the nature of the defect (whether it is a patent or latent defect), and, second, the nature of the remedy.  Historically, the law distinguishes between two kinds of defects, namely, patent defects and latent defects with the accompanying “voetstoots” term.

Patent defects

Patent defects are those defects that are obvious to the naked eye (e.g. a broken window, leaking taps etc.). Where the buyer has inspected the thing bought at (or before) the time of sale, and the inspection ought to have disclosed a defect, and the buyer accepts the goods without objection, the seller is not liable provided he/she has not warranted (expressly or impliedly) the absence of the defect, nor has he/she fraudulently concealed it.

Latent defects

If the defect is ‘latent’, then the defect is not visible or discoverable by the reasonable man on inspection (e.g. a leaking roof / damages foundations etc.). In Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A) at 683, Corbett JA defined a latent defect as follows: ‘Broadly speaking in this context a latent defect may be described as an abnormal quality or attribute that destroys or substantially impairs the utility or effectiveness of the res vendita for the purpose for which it was sold or for which it is commonly used.’

“Voetstoots”

Voetstoots is an Afrikaans term generally used to describe effectively, in just one word, the action of buying something as is, that is just as it stands in whatever condition it is, warts and all. It is essential to all sales of property purchased second hand that may well have deteriorated through normal wear and tear or which may be defective to some extent as a result of its constant use or through natural decay over a period of time. Its basic purpose is to shield the seller from any action by the buyer, on discovering any defects he/she was not aware of when purchasing the property, from doing anything to jeopardise the actual sale contract.

Remedies available to the Purchaser

Before a purchaser can claim damages, he / she must proof 2 things.  Firstly, that the defect (leaking roof) was present during the conclusion of the contract, and secondly, that the Seller was aware of the defect and did not disclose this to him / her.   Should the purchaser be able to proof the aforesaid, then he / she will have the option of the following remedies:

Rescission

Should the purchaser wish to rescind the purchase, the breach would have to be major or material to entitle the purchaser to cancel outright.

Damages

Alternatively, and if the defects are not substantial enough to justify cancellation of the contract, the purchaser may claim damages for any proven damages (e.g. to repair the roof or furniture that were damaged etc.).  The purchaser have 2 options, he / she may call upon the Seller to repair the leaks or if the Seller, having been called upon to remedy an unfit condition in the property, refuses, the purchaser may carry out the necessary repairs and claim the damages from the Seller.