Ellis and Another v Cilliers N.O and Others (16936/11) [2015] ZAWCHC 145; 2016 (1) SA 293 (WCC) (9 October 2015)

Ellis and Another v Cilliers N.O and Others (16936/11) [2015] ZAWCHC 145; 2016 (1) SA 293 (WCC) (9 October 2015)

The court found that the unlevel floors and remedial works constituted latent defects, as they were not visible or discoverable upon inspection and substantially impaired the ordinary use of the property. The sellers were aware of these defects and failed to disclose them, thereby acting fraudulently and defeating the protection of the voetstoots clause. The court adopted a liberal approach to the definition of latent defects, holding that any unusual feature hindering renovation or ordinary use must be disclosed. The sellers' failure to inform the buyers placed the parties on unequal terms and amounted to fraudulent non-disclosure. The plaintiffs succeeded on the merits, with quantum...

Citation
[2015] ZAWCHC 145
Parties
Plaintiff: Edward Ellis; Plaintiff: Lisa Ellis; Defendant: Catherine Claris Cilliers N.O; Defendant: Catherine Claris Cilliers; Defendant: Delia du Toit
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
9 October 2015
Case Number
16936/11
Procedural Posture
Civil Trial / Merits Separated From Quantum; Judgment on Merits
Outcome
Plaintiffs succeed on the merits for such relief as they can prove, subject to quantum being determined later.
Judges
Blommaert AJ
Legal Topics
Voetstoots Clause, Latent Defects, Duty to Disclose, Aedilition Remedies, Fraudulent Non Disclosure
Land and Property Civil Procedure Voetstoots Clause Latent Defects Duty to Disclose Aedilition Remedies Fraudulent Non Disclosure

Case Brief

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Parties

Edward Ellis

Plaintiff

Lisa Ellis

Plaintiff

Catherine Claris Cilliers N.O

Defendant

Catherine Claris Cilliers

Defendant

Delia du Toit

Defendant

Procedural Posture

Civil Trial / Merits Separated From Quantum; Judgment on Merits

Legal Issues

  1. 1 Whether the unlevel floors and remedial works constituted latent defects in the property.
  2. 2 Whether the voetstoots clause protected the sellers from liability for the defects.
  3. 3 Whether the sellers had a duty to disclose the defects and whether non-disclosure amounted to fraud.

Ratio Decidendi

The court found that the unlevel floors and remedial works constituted latent defects, as they were not visible or discoverable upon inspection and substantially impaired the ordinary use of the property. The sellers were aware of these defects and failed to disclose them, thereby acting fraudulently and defeating the protection of the voetstoots clause. The court adopted a liberal approach to the definition of latent defects, holding that any unusual feature hindering renovation or ordinary use must be disclosed. The sellers' failure to inform the buyers placed the parties on unequal terms and amounted to fraudulent non-disclosure. The plaintiffs succeeded on the merits, with quantum...

Court Disposition

Plaintiffs succeed on the merits for such relief as they can prove, subject to quantum being determined later.

Orders

  • Plaintiffs succeed on the merits for such relief as they can prove, subject to paragraph 78.
  • Defendant is ordered to pay plaintiffs' costs on the High Court scale, including costs of Second Plaintiff as a necessary witness and Mr Keevey, plaintiffs' expert.