Gortzen and Another v Moolman (A3022-2021) [2024] ZAGPJHC 185 (28 February 2024)

Gortzen and Another v Moolman (A3022-2021) [2024] ZAGPJHC 185 (28 February 2024)

The court found that the damp in the property was a latent defect, not apparent to the respondent at the time of purchase. Both appellants were aware of the defect: the second appellant had arranged for extensive cosmetic repairs to conceal the damp, and the first appellant failed to disclose his knowledge of the issue in the sale agreement's disclosure form. The court held that their conduct amounted to fraudulent concealment (dolo malo), rendering the voetstoots clause inapplicable. The measure of damages was appropriately based on the actual cost of repairs, as evidenced by the invoice, since no market evidence was led. The appeal was dismissed, and the magistrates court's award of...

Citation
[2024] ZAGPJHC 185
Parties
Appellant: Jan-Nis Gortzen; Appellant: Katja Hanna Gortzen; Respondent: Ardyn Meryl Moolman
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
28 February 2024
Case Number
A3022-2021
Procedural Posture
Civil Appeal / Appeal From Magistrates Court Judgment
Outcome
Appeal dismissed with costs, jointly and severally against the first and second appellant.
Judges
Goodman, Dippenaar
Legal Topics
Latent Defect, Voetstoots Clause, Non Disclosure, Damages Quantification, Fraudulent Concealment
Land and Property Civil Procedure Latent Defect Voetstoots Clause Non Disclosure Damages Quantification Fraudulent Concealment

Case Brief

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Parties

Jan-Nis Gortzen

Appellant

Katja Hanna Gortzen

Appellant

Ardyn Meryl Moolman

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrates Court Judgment

Legal Issues

  1. 1 Whether the damp in the property constituted a latent defect not disclosed to the buyer.
  2. 2 Whether the appellants had knowledge of the damp and deliberately concealed it from the respondent.
  3. 3 Whether the voetstoots clause excluded liability for the defects.

Ratio Decidendi

The court found that the damp in the property was a latent defect, not apparent to the respondent at the time of purchase. Both appellants were aware of the defect: the second appellant had arranged for extensive cosmetic repairs to conceal the damp, and the first appellant failed to disclose his knowledge of the issue in the sale agreement's disclosure form. The court held that their conduct amounted to fraudulent concealment (dolo malo), rendering the voetstoots clause inapplicable. The measure of damages was appropriately based on the actual cost of repairs, as evidenced by the invoice, since no market evidence was led. The appeal was dismissed, and the magistrates court's award of...

Court Disposition

Appeal dismissed with costs, jointly and severally against the first and second appellant.

Orders

  • The appeal is dismissed with costs jointly and severally against the first and second appellant, the one paying the other to be absolved.