What Buyers Need to Know About The Voetstoots Clause

Issue: Does the voetstoots clause always mean you are stuck with your purchase?

Here’s a question from Nkazi:

A few weeks ago, I bought a second-hand car from a private seller on Facebook Marketplace. It’s a 2015 Toyota Corolla Prestige. The seller claimed it was in great condition and had recently serviced it. We chatted a bit on WhatsApp, and he sent me more photos and videos. I loved the car. We eventually met at his workplace, where I inspected the car and took it for a test drive. I did notice a slight rattling noise but dismissed it as normal for a used car. I asked the seller many questions, and he assured me that all was well. He even let me take the car home before the EFT payment cleared in his account.

After a few days of driving the car, I started experiencing problems. The engine overheats daily, leaving me needing to put water in it four to five times daily. I called the seller, but he insisted the car was fine when I bought it. I took the car to a mechanic, who informed me that there was significant engine damage due to neglect and that the brakes needed complete replacement.

I went to see the seller at his workplace to discuss the problems and confront him about what the mechanic said, but he insists the car was sold “voetstoots.” Even his co-workers backed him up, claiming I bought the car in its current condition, so I can’t complain now because I had the chance to inspect and test drive it.

What infuriates me even more is that I found a receipt in the glove compartment showing that he had previously attempted repairs for the overheating problem. He did not mention this at all during the sale. This receipt is from June, just over three months ago. Surely, he could have mentioned the engine issue. I’m so frustrated. I don’t know what to do. We didn’t even sign anything to formalise the sale. I’m at my wit’s end, really.

From The Legal Desk:

Thanks for your question, Nkazi. Buying a brand-new car is not always the most convenient option for everyone. That is why the used car market in South Africa is valued at over R12 billion. However, as with any second-hand purchase, there are risks that a buyer has to contend with, one of which, as you have unfortunately discovered, is unscrupulous sellers. With that in mind, let’s take a look at the legals…

Firstly, it must be noted that a written contract of sale is not always required for an agreement to be valid. An agreement may be entered into orally unless a statute or the parties, or one of them, requires it to be in writing.¹ As such, a written agreement is as binding as an oral one. Therefore, your agreement with the seller in this case is binding even if it was not written down. In future, though, I would advise reducing your agreements to writing to avoid situations like this.

Regarding the voetstoots clause, it would be prudent to begin by briefly explaining what it is. Most agreements tend to contain a provision stipulating that the purchaser buys the property from the seller as it stands, thereby indemnifying the seller against claims for damages regarding any defects in the property, whether patent or latent. In simple terms, the buyer accepts the property as it is. In South African law, such a clause is referred to as a voetstoots clause. By definition, a voetstoots clause is a form of exemption clause indicating that the goods are sold “as is” and exempting the seller from liability for any defects in the item sold.²

In principle, a voetstoots clause may be express³ or implied⁴ between the parties.⁵ However, a voetstoots clause cannot be presumed to be present. As was held by Bristowe J in Wilcken and Ackermann v Klomfass⁶: “The mere fact that the purchaser inspected before buying . . . is not sufficient . . . to constitute a sale Voetstoots”. In fact, there is a presumption against sales voetstoots.⁷

There are instances where the seller cannot depend on (or hide behind) a voetstoots clause, even if one is expressly included in the agreement. One such instance is where the item tendered is entirely different from what was bargained for.⁸ Another is if there has been a fraudulent misrepresentation on the part of the seller. This is because no one can contract out of liability for fraud.⁹

What constitutes fraud on the part of a seller that would invalidate the existence of a voetstoots clause was debated for a long time. The Natal courts held that a seller who knew of the defect and sold voetstoots was not fraudulent unless he deliberately concealed the defect from the purchaser.¹⁰ Meanwhile, the Cape and Transvaal courts held that knowledge of the defect coupled with a voetstoots clause was in itself sufficient to render the seller fraudulent.¹¹ Later, the Natal court began to incline toward a view similar to that of the Cape and Transvaal courts.

This issue was finally clarified in Van der Merwe v Meades.¹² In that case, the court decided that a seller who:
(a) knows of a defect in the item sold; and
(b) deliberately conceals what he knows with intent to deceive is –
as regards the defect deliberately concealed¹³ – not protected by the presence of a voetstoots clause in the contract if there is such a clause.¹⁴ If the two requirements cannot be proven, the seller will be entitled to the benefit of the clause.¹⁵

In your case Nkazi, the receipt you found in the glove compartment suggests that the seller attempted to repair this problem. This indicates he was aware of the issue and thus obligated to inform you. You are not an expert mechanic (at least, I assume you are not), so it is unreasonable to expect that you could diagnose such mechanical defects by conducting a general inspection and test drive of the vehicle. The seller’s failure to alert you to these mechanical issues could be viewed as a deliberate attempt to conceal a known defect with the intent to deceive you, the buyer. As such, he cannot now hide behind a purported voetstoots clause.

What options do you have, then? Well, where the goods are defective, and the seller fraudulently sold them without disclosing the defect, knowing they were defective, you can claim for performance or rescission in terms of the actio empti and also claim for damages (this is, however, a delictual claim¹⁶, which I will not go into now). Put simply, you can compel the seller to repair the car so that he delivers it to you in working order, or you can cancel the agreement, return the defective vehicle, and request your money back. You can also claim for any other costs you consequently incurred as a result of the defective vehicle. All the best.