Warranty against latent defect

In Banda and Another v Van der Spuy and Another 2013 (4) SA 77 (SCA) the owners of a house with a leaking thatched roof sold the house without disclosing the fact that the repairs to the roof had not properly rectified the defect. One of the questions was whether the sellers’ fraudulent concealment of the latent defect nullified the effect of a voetstoots clause.

It was held that the fact that the sellers were aware of only one of the factors that caused the leakage, did not affect the fact that their conduct was fraudulent and their fraudulent conduct resulted in the forfeiture of the protection of the voetstoots clause in respect of the latent defect.

The court also held that as to damages the buyers were entitled to the difference between the purchase price of the house and its value with the defective roof.