What a 12-Year Legal Battle Teaches You About Defects, Agents, and Voetstoots
A recent High Court judgment has sent a very clear message to property buyers in South Africa:
What you think the law says… and what it actually says… are often very different.
This is not theory. This is a real case — and it took over a decade to play out.
The Case: A Dream Home… and a Collapsed Deck
In Fitzpatrick and Another v Latsky NO and Others [2026] ZAWCHC 80, https://www.saflii.org/za/cases/ZAWCHC/2026/80.html a couple bought a home in Marina Da Gama.
They took occupation in January 2014.
Just 7 months later, in August 2014, a wooden deck on the property collapsed.
It later emerged that the deck:
• Was not built according to approved plans
• Was non-compliant with building regulations
Naturally, the buyers took legal action.
They sued:
• The seller
• The estate agent
• The estate agency
They alleged misrepresentation, fraud, and relied on the Consumer Protection Act.
The Reality of Litigation
Here is where the story becomes particularly important.
The collapse happened in August 2014.
The judgment was only delivered in February 2026.
That is:
• More than 11 years after the defect occurred
• Roughly 12 years after the purchase
And after all that time, cost, and effort, the case failed.
The court granted absolution from the instance, meaning the buyers’ case was dismissed before the defence even had to present its full case.
What Are Estate Agents Actually Responsible For?
One of the biggest misconceptions in property is the role of the estate agent.
Many buyers assume:
“If the agent marketed the property, they must be responsible for everything.”
The court made it clear this is not the case.
An agent must:
• Disclose material facts they actually know
But an agent is not required to:
• Investigate hidden defects
• Act as an engineer or building inspector
• Discover structural issues that are not obvious
In this case, the defect was found to be latent — meaning it was not reasonably visible or detectable. The result: the agent was not liable.
“Stunning Home” Doesn’t Mean What You Think
The buyers also relied on how the property was marketed.
Descriptions like:
• “Stunning”
• “Beautiful”
• “In excellent condition”
The court classified this as “puffery.”
In simple terms, it is opinion, not a guarantee. These types of descriptions do not create legal liability.
The Power of the Voetstoots Clause
This case strongly reinforces something we often explain to clients:
The voetstoots clause still matters — and it matters a lot.
This clause means the buyer accepts the property “as it stands.”
To successfully claim against a seller despite voetstoots, a buyer must prove:
1. The seller knew about the defect
2. The seller deliberately concealed it
Both must be proven.
In this case:
• The buyers could not prove knowledge
• Their own evidence suggested the seller was honest
The result: the clause held, and the claim failed.
Do Repairs Prove Knowledge?
Another key argument from the buyers was:
“The seller repaired the deck — so they must have known about the defect.”
The court rejected this.
It found that:
• Repairs can simply be normal maintenance
• They do not automatically prove knowledge of a defect
You cannot jump from “they fixed something” to “they knew everything.”
This is also why the seller’s property condition declaration is so important.
Major repairs should always be properly disclosed to avoid disputes later.
What About the Consumer Protection Act?
Many buyers believe the Consumer Protection Act protects them in all property transactions.
This case confirms that is not always true.
The CPA did not apply because:
• The seller was a private individual, not acting in the ordinary course of business
• The agent did not “supply goods” in the legal sense
The result: no CPA protection. This is the cae in almost every property transaction unless you are buying a new build from a developer
The Real Warning for Buyers
This case highlights a few critical realities:
• Property law is based on evidence — not assumptions
• The burden of proof is high
• Litigation is slow, expensive, and uncertain
Most importantly:
If you cannot prove what the seller knew, which if you think about things carefully is actually extremely difficult, you probably do not have a case.
Practical Advice for Buyers
If you are buying property, take this seriously:
• Do proper inspections — do not rely on appearances – yes this is slow and painful and often feels uncomfortable as you are doing this is somebody elses house. But please remember this is the biggest purchase of your life so deserves the extra consideration as mistakes are not an option.
• Understand what voetstoots really means
• Do not rely on marketing descriptions
• Ask questions and get clarity upfront
Because once the deal is done, you are buying the property as it stands, not as you hoped it would be.
Final Thought
This case took over a decade to resolve and still ended in failure for the buyers.
That alone tells you something important:
The best protection is not legal action after the fact — it is making the right decisions before you sign.
Work With Agents Who Understand the Full Picture
Property is not just about finding a buyer or a house — it is about understanding the risks, the law, and how to protect your position.
If you want agents who are completely up to date, understand the legal side of property, and know how to guide you properly —
Visit WeSellHouses.co.za
Our name says it all.