In this case the Appellants bought a house from the Respondents. The house’s thatched roof had problematic leaks due to structural and other faults.

The Appellants were not completely aware of these leaks before taking transfer and only came to know the full extent of these defects after transfer.

The Appellants contended that the Respondents were aware of the defects and fraudulently concealed them and thus sought to hold the Respondents liable.

The sale agreement contained a voetstoots clause. Prior to the conclusion of the sale agreement, the Appellants were advised of certain rain damage to the roof which had been repaired by the Respondent’s contractor.

The Respondents contended that following the repairs, they believed that the problems were addressed and consequently did not fraudulently withhold relevant information from the Appellants.

The contractor had issued a verbal warranty in respect of his repairs but at the time of the sale of the property, this warranty had lapsed.

The Respondents nonetheless assured the Appellants that the warranty was still valid and this assurance was included in an addendum to the sale agreement.

The court a quo found that because of the roof’s serious structural defects, the damages claimed by the Appellants did not arise as a direct result of the Respondents’ fraudulent conduct regarding the guarantee.

The guarantee, despite being given by the Respondents to the Appellants, would not have averted the Appellants’ loss as the guarantee related only to the contractor’s corrective work and did not function as a guarantee in respect of all latent defects.

On appeal, the Supreme Court of Appeal found that South African law holds a seller liable for all latent defects which render the thing sold unfit, or partially unfit, for the purpose for which it was envisioned.

The Court went on to state that a leaking roof is a latent defect which renders the house unfit for habitation.

Consequently, as the Respondents had knowledge of one of the causes for the leaking roof, namely the deficient roof design; and notwithstanding the knowledge that it had not been permanently repaired, had concealed this, they were liable to the Appellants.

The Respondents’ conduct therefore vitiated the effect of the voetstoots clause.

The appeal was accordingly upheld.

Written by Molisa Cheda.