Ellis and Another v Cilliers N.O and Others (16936/11) [2015] ZAWCHC 145 (9 October 2015)
The factual background to the dispute is briefly as follows: the Plaintiffs bought a wooden house built into a slope and the front is on so-called “stilts”. When they started renovating it to form an open plan arrangement, they discovered that the floor had subsided at the outer edges, with the result that the central part was higher than the sides. Upon removal of the floorboards they discovered that the house suffered from a number of defects, for instance that the poles supporting the structure of the timber house, the beams and floor joists (hereinafter “the “foundation”) had severely decayed, with the result that the house had subsided up to 90 millimetres on the northern side in short the house was no longer level. The plaintiffs also alleged that a cement screed had been applied to the timber flooring, NUTEC cladding added to the outside and a false ceiling had been constructed to hide evidence of subsidence and to create the illusion that the house was in fact level.
Defendants denied knowledge of the defects relating to the foundation and maintain that all the alleged defects are not defects but were done for aesthetic reasons.
The contract on which this claim is based contained a “voetstoots” clause, the relevant part of which reads as follows:
“The property is sold as it now stands (i.e. voetstoots) and according to the deed(s) of Transfer and diagram (s). The Seller shall not be liable for any deficiency in the extent of the property nor shall he benefit from any excess. Neither the Seller nor his Agent shall be responsible for any defects, whether latent or patent, nor shall they be answerable for any warranties either express or implied."
Blommaert AJ emphasised that it is trite that to avoid the consequences of such a “voetstoots” clause, the Purchaser must show, not only that the Seller knew of the latent defect and did not disclose it, but also that he or she deliberately concealed it with the intention to defraud.
From the evidence and the exhibits, more notably, photographs handed in and on which evidence was lead, two things are patently obvious:
- Firstly, that the foundation was severely decayed. On any approach to the matter, this was indeed a latent defect and the Defendants admitted as much during the course of the trial. Defendants’ defence to this was that they were not aware of the state of the foundation and therefore they did not have the requisite intention to defraud as set out herein above, with the consequence that they were protected by the “voetstoots” clause;
- It was also clear and, that certain remedial work had been done to the house. It is Defendants’ case that his was inter alia for aesthetic reasons and for practical reasons relating to painting which did not entail a latent defect and therefore, no matter what the intention was, the seller did not consider them to be latent defects and therefore could not have the necessary intention to conceal them.
However what was accepted in the papers and on the evidence was that Defendant was aware of the levelling treatment done to the house.
In other words, the crisp issue for decision is whether the alleged defects were defects, whether they were latent or not and whether the voetstoots clause protects the Defendants. In applying the Supreme Court of Appeal’s ruling in Odendaal v Ferraris that:
“It is now settled that any material imperfection preventing or hindering the ordinary or common use of the res vendita is an aedilition defect” (at page 322A).”,
the question therefore to be asked was: “did the fact that the floors had been levelled hinder the ordinary or common use of the res vendita?”.
The Defendant alleged that the levelling of the floors was done purely for aesthetic reasons and therefore did not hinder the ordinary common use of the res vendita.
But, it was patently obvious that such renovation by the Plaintiffs would have been met with a very real problem of having cement screed over wooden floors. So too, removing the so-called false ceiling to expose the rafters, which they alleged they found aesthetically more pleasing, would have created problems, the sort which a reasonable man would certainly not expect to find in a house, and as such these defects “hindered the ordinary or common use of the res vendita”.
The next question dealt with was, should the Defendant have told the Plaintiff about the unlevel floors. In the mind of the court this fell squarely within the following dictum from Odendaal v Ferraris op cit at page 323B where the Learned Judge Cachalia A J says:
“Where a seller recklessly tells a half truth or knows the facts but does not reveal them because he or she has not bothered to consider their significance this may also amount to fraud”.
Based on the evidence, the unlevel floors were therefore of a concern to the Defendant. Whether for aesthetic reasons or not because as second Plaintiff said during her cross examination “if there had been no defect her husband would have had nothing to level” (record, p 267 (2)).
It was clear to the court that the Defendants never considered the significance of telling the Plaintiff this but as explained, she should have done so because the unlevel floor is a latent defect. In the view of the court her actions therefore constituted the necessary intention to defeat the provisions of the voetstoots clause.
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