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Cox YeatsATTORNEYS

March 2004

CONSTRUCTION LAW BULLETIN

VOETSTOOTS CLAUSES

Voetstoots clauses are invariably included in sale contracts

relating to immovable property.

Their purpose is to insulate a seller against claims by the buyerrelating to latent defects in the property.

In terms of our common law, sellers impliedly warrant to buyers

that articles sold are free of latent defects.

Ordinarily the only limitation on the protection afforded by suchclauses is in those circumstances where the seller knows about

the defect at the time of the sale and purposefully conceals thedefect from the buyer.

The Cape High Court1 at the end of last year added a further

limitation to the reach of voetstoots clauses.

THE FACTS

In 1996 Mr Henry Barnes bought a vacant property on a steepslope on the Tygerberg overlooking the Cape Peninsula. He

designed and built a dwelling on the property.

On the southern boundary between the property and a loweradjoining property there was a pre-existing retaining wall

approximately 2 metres high which had been erected by theneighbour.

Mr Barnes, with the permission of the neighbour, increased the

height of the retaining wall by building on top of it. In doing so,Mr Barnes increased the retaining part of the wall and built a free

standing wall on top of the retaining section of approximately 1,2metres. Fill was placed against the new retaining section and

1 Paul Leatham Humphrys NO v Henry John Barnes High Court

of South Africa, Cape of Go od Hope Provincial Division, CaseNo A1236/02.

paving laid on the fill. No provision was made for drainage of

the newly filled area.

In carrying out this work, Mr Barnes did not see fit to enlist theadvice or the services of a structural engineer or any other

suitably qualified person.

In May 1997 Mr Barnes sold the property to the P&L Trust.

The sale agreement contained the following provision:

9. Warranties and undertakings

9.1 The property is hereby sold voetstoots subject to

all existing servitudes and title deed conditions.

Approximately a year later, in 1998, the retaining wall collapsed

causing extensive damage.

The P&L Trust sued Mr Barnes for the costs of repairing theretaining wall and the damage caused by its collapse.

BASIS OF CLAIM

Had the voetstoots clause not been contained in the saleagreement, the P&L Trust would have been entitled to base a

claim on the common law implied warranty against latentdefects which is a normal incidence of every sale contract.

The Trust initially contended that the voetstoots clause did not

apply because Mr Barnes had been aware of the defect and hadintentionally concealed it. The Trust however did not persist

with this line of attack.

The Trusts principal attack was advanced not in the law ofcontract but in the law of delict.

In terms of the law of delict you can be held liable for damages

suffered by another person if the requis ite ingredients giving rise

to delictual liability are present.

The ingredients for delictual liability are:

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A wrongful act an act is wrongful if you owe a person a

duty of care and you transgress that duty.

Fault fault is present if you have acted negligently orintentionally. You are negligent if you foresee the possibility

of harm and you do not take reasonable and practicable steps

to guard against the harm arising.

Patrimonial loss caused by the negligent or intentional

action.

The Trust argu ed that Mr Barnes had owed it and for that matter

successive purchasers of the property a duty of care and that he

had breached that duty of care by negligently constructing aretaining wall without the necessary structural integrity and not

in accordance with the National Building Regulations.

Importantly, he had failed to secure the services of a competentstructural engineer in building the wall.

COURTS FINDING

Expert evidence at the trial demonstrated that the increased fill,the free standing wall on top of the retaining wall and the lack of

drainage all contributed to an excessive increase in the bendingmoment of the wall which caused its collapse.

The court in fact found that neither the original retaining wall nor

the extension constructed by Mr Barnes had been built with the

necessary structural integrity and in accordance with the NationalBuilding Regulations.

In the circumstances the court found that both the neighbour and

Mr Barnes had breached a duty of care owed to successive

owners of the Barnes property to ensure the integrity of thestructure and their negligence in this regard had caused the

collapse of the wall.

The Trust had in the action only made a claim against Mr Barnes

and not the neighbour. Whilst this may at first blush appear to be

unfair, it is expressly allowed in our law of delict where theprinciple has been expressed as follows 2:

a plaintiff can hold a defendant liable whosenegligence has materially contributed to a totality of

loss resulting partly also from the acts of otherpersons or from the forces of nature, even though no

precise allocation of portions of the loss to the

contributing factors can be made.

In relation to whether the voetstoots clause provided Mr Barnes

with a shield against the Trusts delictual claim, the court foundthat it did not.

2

Kakamas Bestuursraad v Louw 1960(2) SA 202A at 222A -C.

The court explained that a voetstoots clause only limits the

contractual liability of a seller for latent defects in the property

sold. It does not exclude liability for anything else such as forexample negligence or misrepresentation.

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It would have been permissible for Mr Barnes to have included

a clause excluding liability for delictual claims in the sale

agreement. In the absence of such a provision, Mr Barnes was

held liable for the Trusts damages claim.

Sellers beware.

PRESCRIPTION OF ARBITRATORS AWARD

An arbitrators award prescribes after the elapse of three years

unless it is made an order of court in which case a 30 year

prescriptive period applies.4

ALASTAIR HAY

COX YEATS

12th Floor, Victoria Maine

71 Victoria EmbankmentP O Box 3032

DURBANTel: (031) 304 2851

Fax: (031) 301 3540

ahay@coxyeats.co.za

3Cockroft v Baxter 1955(4) SA 93C at 98B-C.

4Prima Vera Construction v Government North West Province

2003(3) SA 579B.