In South African property law, a voetstoots clause, which translates to "as is," indicates that the buyer accepts the property in its present state, with all its faults.  Sellers seek protection from responsibility for both patent (visible) and latent (hidden) flaws found after the sale by including this clause in their Deed of Sale.  This protection isn't absolute, though, as sellers are still liable if they intentionally hide flaws or commit fraud. 

Risk equilibrium for all parties
Without a voetstoots clause, sellers can be held accountable for defects that don't show up right away, including those that were not apparent when the contract was signed. Latent defect claims may be pursued in South Africa within three years of acquiring the minimum facts necessary to institute legal action.  By including this condition, buyers are now responsible for conducting a comprehensive inspection and exercising due diligence. To prevent buyers from regretting unanticipated imperfections, professional inspections become crucial. 

Fraud and nondisclosure: An overview of the limitations
If the seller knows of a defect and purposefully conceals it, the clause is nullified. The voetstoots clause cannot be relied upon by a seller who knows of deficiencies and deceives the buyer. Therefore, even though the clause transfers risk, it does not absolve fraudulent non-disclosure, which is an essential protection for purchasers.

Consumer Protection Act (CPA) and ‘Ordinary course of business’
The effectiveness of voetstoots clauses has been further restricted since 31 March 2011 by the Consumer Protection Act 68 of 2008. Sellers cannot utilise this clause to avoid liabilities if they sell a property in the regular course of business.  In private sales, where the seller is not a business entity, the voetstoots clause remains valid and enforceable unless it can be proven that the seller fraudulently concealed defects.

Strategic Application for Sellers
Sellers are provided with essential legal protection through the inclusion of a well-worded voetstoots clause, especially against hidden defects. However, sellers should still disclose known issues and conduct thorough inspections. Including a disclosure form that details any known faults recognised by buyers is also advisable, as it helps prevent misunderstandings and promotes transparency. In sales involving Property Practitioners, such disclosure forms are compulsory.

Voetstoots clauses, on the other hand, should be viewed as warning signs by buyers, who should then request inspections, legal review, and, if required, negotiate price changes or repairs before completing the transaction.

Voetstoots clauses are more than just legalese; they are an effective tool for risk allocation. It reminds clients to do their research and protects sellers against unidentified flaws. However, it shouldn't be used by any side to avoid being truthful or thorough. When carefully worded and combined with open disclosures, the clause promotes equitable and predictable real estate transactions.


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