“If a buyer wants to avoid the consequences of a Sale of Voetstoots, he must not only prove that the seller was aware of the latent defect and did not disclose it, but also that he deliberately concealed it with the intention of defrauding.” It is important that not all buyers benefit from CPA protection. For the purposes of paragraph 5, paragraph 2, the law does not apply to a transaction if a consumer/buyer is a legal entity with an asset or annual turnover greater than R2,000,000 (two million rand). A sale agreement between a seller and a buyer with an annual turnover of more than R2,000,000 (two million rand) may include a voetstoots clause, since this transaction has no protection under the CPA. Effects of Consumer Protection Act 68 2008 on the Voetstoots clause. Most real estate contracts contain a clause in which the purchaser accepts the purchase of the voetstoots property. The voetstoots clause is a provision of the contract which provides that the buyer buys the property from the seller in its current form and thus compensates the seller for damages for patent defects or latent defects on the property. Patent defects are such defects that are visible, while latent defects are hidden and are not visible by proper examination. The CPA refers to the agreements made in due form by a developer who provided (the property) to the purchaser of that property. When a company buys and sells real estate in normal activity, it cannot include a Voetstoots clause in a sale agreement when it sells real estate to a consumer. Therefore, a promoter cannot exclude liability for the defects of the property by a Clause of Voetstoots in its sales contract. However, if the same developer sold their own home, this transaction would not be subject to the CPA, as the developer would not sell that property in normal business. The private sale of real estate is not a transaction within the scope of the CPA, as it is not within the normal framework of operations.
Why exclude a Voetstoots scheme if the CPA is about a purchase agreement? Under section 55 of the CPA, a buyer has the right to receive property that is appropriate for the purposes for which they are generally intended and which are of good quality, in good condition and without defect. The property must also be usable and durable for a reasonable period of time. The law provides that a seller expressly informs a buyer that the property is being sold in a particular condition and the buyer must expressly accept the property in that condition.