Haviside v Heydricks and Another (AR27/13) [2013] ZAKZPHC 53; 2014 (1) SA 235 (KZP) (17 October 2013)

Haviside v Heydricks and Another (AR27/13) [2013] ZAKZPHC 53; 2014 (1) SA 235 (KZP) (17 October 2013)

The court held that the absence of statutory approval for the double garage constituted a latent defect. The voetstoots clause in the sale agreement protected the appellant from liability for such defects unless the respondents could prove that the appellant knew of the defect and deliberately concealed it with the intention to defraud. The evidence did not establish that the appellant had knowledge of the illegality or that she intentionally concealed it. The magistrate erred by failing to address the requirement of fraud and by not following the Supreme Court of Appeal's decision in Odendaal v Ferraris. Accordingly, the appellant was entitled to rely on the voetstoots clause, and the...

Citation
[2013] ZAKZPHC 53
Parties
Appellant: Barbara Joy Haviside; Respondent: Morne Heydricks; Respondent: Jane Heydricks
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
17 October 2013
Case Number
AR27/13
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment
Outcome
Appeal upheld; magistrate's order set aside; respondents' claim dismissed with costs.
Judges
Stretch, Chili
Legal Topics
Voetstoots Clause, Latent Defects, Implied Terms, Building Regulations, Fraudulent Non Disclosure
Land and Property Civil Procedure Voetstoots Clause Latent Defects Implied Terms Building Regulations Fraudulent Non Disclosure

Case Brief

Summary, issues, holding and outcome

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Parties

Barbara Joy Haviside

Appellant

Morne Heydricks

Respondent

Jane Heydricks

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether the seller was obliged to disclose that the double garage was an illegal structure.
  2. 2 Whether the seller's non-disclosure amounted to fraudulent misrepresentation.
  3. 3 Whether the voetstoots clause in the sale agreement excluded liability for statutory non-compliance.

Ratio Decidendi

The court held that the absence of statutory approval for the double garage constituted a latent defect. The voetstoots clause in the sale agreement protected the appellant from liability for such defects unless the respondents could prove that the appellant knew of the defect and deliberately concealed it with the intention to defraud. The evidence did not establish that the appellant had knowledge of the illegality or that she intentionally concealed it. The magistrate erred by failing to address the requirement of fraud and by not following the Supreme Court of Appeal's decision in Odendaal v Ferraris. Accordingly, the appellant was entitled to rely on the voetstoots clause, and the...

Court Disposition

Appeal upheld; magistrate's order set aside; respondents' claim dismissed with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the court below is set aside.