Basic South African Property Laws

Before considering buying a house or apartment / flat etc in South Africa, it is recommended that potential buyers first familiarize themselves with some of the country's basic property laws. This will provide the buyer with valuable insights into the local property market, processes and the various costs and fees involved.

Inspection Before Purchase

Though standard practice in the UK and US, home inspections are not required by law in South Africa. As a result of this, buyers are purchasing properties without any guarantees, and cannot hold the seller liable for any hidden defect or problems on the property. This is commonly known in South Africa as the "Voetstoets Clause".

Though not a legal requirement in South Africa, home inspections are well within the rights of the buyer, and might very well be in the best interests of the buyer. Costs involved in this process may vary anywhere from between R1500 and R3000 depending on the size of the property, but in the long run it will prove to be a valuable investment due to the fact that such an evaluation might reveal any potential problems with the property. Typically, the buyer will receive a report which includes detailed information regarding issues such as structural cracks, dampness, electrical circuits, the geyser and plumbing system, visible foundations and roof construction.

The Voetstoots Clause

The Voetstoets clause plays an important role in the buying and selling of property in South Africa, and refers to the buying or selling something as is, regardless of its condition. This clause works well to protect the rights of the seller.

As a potential buyer however, the clause does not yield many benefits. There are two exceptions however, which entitle buyers the legal power to take action either for a reduction in selling price, or to cancel the contract entirely.

The first of these exceptions applies if the seller was aware of problems or defects to the property, but did not disclose these issues with the purchaser. The second applies when fraudulent or innocent materials were misrepresented. The latter is only valid if the latent (hidden) defects were to such an extent that, had the purchaser been aware of them, they would not have bought the property.   

Patent and Latent Defects

The voetstoots clause refers to patent and latent defects, so in order to gain a full understanding of the clause, the differences are explained as follows:

Patent defects are those which are clearly visible upon an inspection by any person who does not have specialized or professional knowledge on the subject. Patent defects include visible cracks in walls, damage to roof tiles or the roof itself, missing tiles, broken windows, sagging gutters and other defects similar in nature. It is in the instance of patent defects that the buyer cannot claim post purchase that he was unaware of the defects. It would be in the best interest of the buyer to familiarize themselves with the condition of the property, and negotiate and possible changes which need to be made before the finalizing of the contract.

Latent defects are those which cannot be seen with the naked eye, and it is under these circumstances that the buyer should be advised to conduct a formal inspection of the property before purchasing it. By having an inspection done by a reputable professional, the buyer will be able to determine such issues as rising damp or moisture behind closets, defective geysers, rusted internal plumbing, roof leaks and any other hidden faults.

Latent defects are not clearly visible, and the voetstoets clause holds the seller liable to reveal any such defects in their knowledge.In instances where certain defects were known by the seller, yet were not disclosed to the buyer, the seller may then be forced to refund  a portion of the selling price or even accept cancellation of the purchase altogether.  This depends on the nature or degree of the latent defects.

The only time when a seller may be excused from making compensation for latent defects is if they were unaware of the defects at the time of sale.

Late Discovery of Defects

The late discovery of defects on a property can be a frustrating and expensive mistake to make, depending on the severity of the defect and costs involved to rectify the situation.

Problems such as a roof which leaks may seem fine at the time of purchase, however months later it may cause cause great difficulties at the onset of the rainy season, when the problem will be made apparent. If it can be proven that the seller was aware of the problem at the time of sale, and failed to disclose it to the buyer, then he or she will be liable for the costs of the repairs.