ORIGIN:

Definition of Voetstoots

- Dutch

- “Met de voet te stoten”

- To push/shove with the foot

SOUTH AFRICAN LAW:

Definition of Voetstoots

- Without guarantee or warranty

- As it stands

- With all its faults

- At the buyers risk

- What you see is what you get

APPLICATION:

Interpretation of Voetstoots

- Sale of immovable property i.e. house

- Purchase of goods

- producer

- importer

- distributor

- retailer

DEFINITION OF DEFECTS

Interpretation of Voetstoots

“Material imperfection that renders goods less acceptable or

practicable”

TYPES OF DEFECTS

Interpretation of Voetstoots

- Latent Defects

- Hidden / non-obvious

- Not visible or discoverable

- Patent Defects

- Easily identified

SALE OF A HOUSE

Voetstoots & Immovable Property

- Application of the CPA?

- Ordinary course of business i.e. developer

- Private Sale

- Offer to purchaser / agreement of sale

- Inspection by the buyer

- Signature of an agreement

- Duty on the Seller

SALE OF A HOUSE

Voetstoots & Immovable Property

- Deliberate concealment – not protected by voetstoots

- Concealment of defects = test

- Conscious knowledge

- Reasonable grounds

- Obligation to disclose

- Remedies available to the Buyer?

CONSUMER PROTECTION ACT

Voetstoots & CPA

- 1 April 2011

- Voetstoots survive the CPA?

- Creation of term regarding quality = rights for consumer in CPA

TRANSACTIONS THAT FALL WITHIN THE ACT

Voetstoots & CPA

- Implied warranty of quality = expectation:

- Good quality

- Working order

- Free from defects

SECTION 55: Consumer’s right to safe, good quality goods

Voetstoots & CPA

- Right to received goods that are:

- Reasonably suitable for the purpose intended

- Good quality, good working order, free from defects

- Useable and durable for a reasonable period of time

SECTION 55: Consumer’s right to safe, good quality goods

Voetstoots & CPA

- Additional Rights:

- Inform supply of a specific purpose for goods

- Supplier offers goods

- Acts in a manner = knowledge

- Consumer expectation

SECTION 56: Implied warranty of quality

Voetstoots & CPA

- Goods must comply with provisions of the Act

- Defect = Remedy to Consumer

- Within 6 months – refund, replace or repair

- Repairs = 3 months

- Cash or Credit?

SECTION 2(10)

Voetstoots & CPA

- Interpretation of CPA

- Cannot preclude any right the consumer has in terms of

Common Law

- Section 56 confirms CPA rights are in addition to Common

Law rights

SECTION 51

Voetstoots & CPA

- Transaction / agreement cannot be subject to terms and

conditions that:

- Waive / deprive consumer of rights ito the Act

- General ‘umbrella’ voetstoots = against the Act

NO PROTECTION FROM VOETSTOOTS

Application of Voetstoots

- Sub-standard goods

- Fraud / non-disclosure / deliberate concealment

CPA NOT APPLICABLE

Application of Voetstoots

- Auction

- Consumer has agreed as to the quality of goods

- Expressly informed by the supplier

- Specific condition of goods i.e. described defects

- Expressly agreed to accept / knowingly acted in a manner

consistent with accepting goods

CLAUSES IN CONTRACTS & THE CPA

Application of Voetstoots

- Section 48(1)(c)

- Exclusion, restriction, limitation

- Unfair, unreasonable, unjust

TIPS TO ENSURE YOUR RIGHTS: SALE OF PROPERTY

Conclusion

- Thorough inspection by both parties before signing

- Voetstoots clause not an essential = contract out

TIPS TO ENSURE YOUR RIGHTS: PURCHASE OF GOODS

Conclusion

- Section 55 & 56 = enforce your rights

- Consumer Goods and Services Ombud

- 08600 000 272

- www.csgo.org.za