Neutral citation: Haviside v Heydricks and Another (AR27/13)  ZAKZPHC 53 (17 October 2013)
Coram: Stretch, Chili AJ
Delivered: 17 October 2013
On 15 August 2005 Morne and Jane Heydricks bought a house from Barbara Haviside for R896 400,00. After taking taken transfer, they approached the local municipality about building a flat on top of the existing double garage and outbuildings. On further investigation the garage was found to be an illegal structure as it did not conform to municipal bylaws.
In the court a quo the Magistrate found in favour of the respondents and this appeal was based on the grounds that he erred in:
[12.1] concluding that it was not necessary to make a finding on whether the appellant’s non-disclosure was fraudulent, and that a mere finding of non disclosure was sufficient for the appellant to attract liability;
[12.2] not concluding that a finding of fraudulent misrepresentation required knowledge of unlawfulness (which the appellant did not have);
[12.3] not following the judgment in Odendaal v Ferraris 2009 (4) SA 313 SCA, which judgment was given on 1 September 2008, a month before the magistrate delivered his judgment in the court a quo;
[12.4] finding in the respondents’ favour in the face of their failure to have proved that the appellant had deliberately concealed the existence of latent defects with the intention to defraud.
The respondents here, contended that the point in issue which needed to be decided was a legal one (that the trial court correctly determined that it was an implied term of the agreement that structures had been erected in compliance with building regulations and with the approval of the municipality), and not on the factual question of whether or not the appellant had knowledge of the illegality of the structure when it was sold. They contended further that the construction of the garage did not amount to a latent defect excluded by the voetstoots clause but rather to an illegality not excluded by the voetstoots clause as it lacked the “certain qualities or characteristics which the parties have agreed the merx should have”.
Stretch AJ did not agree with this contention, however he found it necessary to analyse the commonsense application of the facts in Odendaal to the facts of this case. In Odendaal there was non-compliance with the relevant Act, however it was not clear whether the High Court had found that the seller had wilfully concealed the defects, nor was the effect of the voetstoots clause considered. On appeal in Odendaal it was argued that the clause did not protect the seller from her failure to obtain statutory approval, this was rejected (for not being a case of a defect in the res vendita but a case of delivery to buyers of ‘something completely different from what was bought’).
Here the absence of statutory permission was found to constitute a latent defect and therefore it fell within the ambit of the voetstoots clause because:
At  “In Odendaal, Cachalia JA held that the carport’s irregular structure which may require either its demolition or alteration as a condition for approval (my emphasis), are defects which interfere with the ordinary use of the property – thus satisfying the Holmdene Brickworks test – and are therefore latent defects within the aedilitian concept. The Judge held further that the fact that they also contravened building regulations did not change their character and disagreed with the finding in Van Nieuwkerk to the extent that that case suggested otherwise. The Judge accordingly concluded that a voetstoots clause ordinarily covers the absence of statutory authorisations (at 322C-E). I respectfully agree.
 After all, the purpose of such a clause is to exempt the seller from liability for defects of which he or she is unaware. And where the seller’s statutory noncompliance concerns latent defects in the property, as was the case in Odendaal and also in the matter before me, the seller ought to be entitled to invoke the exemption.”
Based on the evidence, there was nothing to suggest that the appellant was aware of shortcomings of the garage, and because the purchaser could not prove:
- that the seller knew of the latent defect and did not disclose it;
- that the seller deliberately concealed it with the intention to defraud.
The appeal therefore succeeded.