Bought a vehicle "Voetstoots" from a dealer. Later on the same day I became aware of a gearbox problem. The vehicle goes into "limp" mode after some driving as the gearbox overheats. This is a "latent defect". The dealer is turning his back on me as he claims he did not know about the problem. The vehicle cost R22500 and will cost at least R15 000 to fix. Do I have any recourse?

The word voetstoots is an Afrikaans term generally used to effectively describe, 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. Its basic purpose is to shield the Seller from any action by the Buyer, on discovering any defects he was not aware of when purchasing the property, from doing anything to jeopardize the actual sale contract. These types of voetstoots clauses normally free the Seller from his implied warranty against all patent and latent defects. However, there are two exceptions that would entitle the purchaser either to cancel the contract or sue for a reduction in the selling price:

• The seller knew of the defects and did not disclose them to the purchaser;

• The purchaser can also cancel the contract on the basis of a fraudulent or innocent material misrepresentation, even if the sale is voetstoots (but only if the latent defect is so serious that if the purchaser had known of it he would not have bought).

Our case law provides that '...a seller who was aware of a defect will not be excused by the fact that at the time of sale he declared that he was selling the thing such as it is, and that he did not wish to be held liable for its defects ...and ‘…that the operation of the voetstoots clause was thus confined to cover those latent defects which the seller did not deliberately conceal in order to induce the contract... '

Answered by Bertus Preller

Family Law Attorney

KWJ Inc.

bertus@divorceattorney.co.za

http://www.divorceattorney.co.za