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Banda

2 May 2013

Neutral citation: Banda v Van der Spuy (781/2011) [2013] ZASCA 23 (22 March 2013)
Coram: Lewis, Maya, Cachalia JJA and Erasmus and Swain AJJA
Heard: 7 March 2013
Delivered: 22 March 2013

A thatch roof that leaked prior to the sale of a house by the respondents to the appellants, and which continued to leak after the sale, gave rise to the present dispute between the parties. The cause of the leaks in the roof was twofold:

  1. Its wooden roof poles couldn't support the weight of the thatch roof and would have to be reinforced. As a result, the roof was gradually collapsing, moving downwards, as well as laterally. As a consequence of the movement in the roof, openings had appeared between the flashing and the thatch, through which rainwater had gained ingress and flowed down the internal walls of the house.
  2. The pitch of the roof at 30 degrees was inadequate as the recommended pitch to stop the thatch rotting is 45 degrees.

The roof structure was therefore structurally unsound, as the trial court found, and the appellants brought a claim based on the actio quanti minoris. Because the agreement of sale had a voetstoots clause they had the added burden of not only proving the existence of latent defects in the roof, but also that the respondents were aware of the defects and had fraudulently neglected to inform them of their existence. Despite having some repairs made to the roof, it was clear that the first respondent did not possess an honest belief in the adequacy of the repairs that were effected to the roof, such that the problem of leaks in the roof had been permanently addressed. Considered together with the fraudulent conduct of the respondents in not disclosing the absence of a valid guarantee and their dishonesty in relation to the duration of the guarantee, it is clear that they possessed knowledge of the structural defects in the roof,and they were therefore obliged to disclose this knowledge to the appellants.

The effect of the voetstoots clause was therefore vitiated and the appellants were accordingly entitled to the difference between the purchase price of the house and its value with the defective roof. An alternative cause of action was  based upon a fraudulent misrepresentation by the sellers as to the existence of a guarantee in respect of the repairs, which induced the buyers to purchase the house.  This was found to be unnecessary as the terms of the guarantee only covered the repairs made to the roof and not all latent defects.  Since the reasonable costs of repairing the roof were directly and causally connected with the fraud of hiding the defects and are not remote the court found that the trial court  erred in restricting the causative effect of the fraudulent misrepresentation to those defects which would have been covered by the invalid guarantee. 

Full judgment

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