CONSTRUCTION LAW BULLETIN
Voetstoots clauses are invariably included in sale contractsrelating to immovable property.Their purpose is to insulate a seller against claims by the buyerrelating to latent defects in the property.In terms of our common law, sellers impliedly warrant to buyersthat articles sold are free of latent defects.Ordinarily the only limitation on the protection afforded by suchclauses is in those circumstances where the seller knows aboutthe defect at the time of the sale and purposefully conceals thedefect from the buyer.The Cape High Court
at the end of last year added a furtherlimitation to the reach of voetstoots clauses.
In 1996 Mr Henry Barnes bought a vacant property on a steepslope on the Tygerberg overlooking the Cape Peninsula. Hedesigned and built a dwelling on the property.On the southern boundary between the property and a loweradjoining property there was a pre-existing retaining wallapproximately 2 metres high which had been erected by theneighbour.Mr Barnes, with the permission of the neighbour, increased theheight of the retaining wall by building on top of it. In doing so,Mr Barnes increased the retaining part of the wall and built a freestanding wall on top of the retaining section of approximately 1,2metres. Fill was placed against the new retaining section and
Paul Leatham Humphrys NO v Henry John Barnes High Courtof South Africa, Cape of Good Hope Provincial Division, CaseNo A1236/02.paving laid on the fill. No provision was made for drainage of the newly filled area.In carrying out this work, Mr Barnes did not see fit to enlist theadvice or the services of a structural engineer or any othersuitably qualified person.In May 1997 Mr Barnes sold the property to the P&L Trust.The sale agreement contained the following provision:
Warranties and undertakings
9.1 The property is hereby sold voetstoots subject toall existing servitudes and title deed conditions.”
Approximately a year later, in 1998, the retaining wall collapsedcausing extensive damage.The P&L Trust sued Mr Barnes for the costs of repairing theretaining wall and the damage caused by its collapse.
BASIS OF CLAIM
Had the voetstoots clause not been contained in the saleagreement, the P&L Trust would have been entitled to base aclaim on the common lawimplied warranty against latentdefects which is a normal incidence of every sale contract.The Trust initially contended that the voetstoots clause did notapply because Mr Barnes had been aware of the defect and hadintentionally concealed it. The Trust however did not persistwith this line of attack.The Trust’s principal attack was advanced not in the law of contract but in the law of delict.In terms of the law of delict you can be held liable for damagessuffered by another person if the requisite ingredients giving riseto delictual liability are present.The ingredients for delictual liability are: