Ismail NO and Another v Erf 87 Dullstroom CC (A357/2015) [2015] ZAGPPHC 835 (11 December 2015)

Ismail NO and Another v Erf 87 Dullstroom CC (A357/2015) [2015] ZAGPPHC 835 (11 December 2015)

The court found that the appellants were aware of the road reserve, which constituted a latent defect, and failed to disclose this to the respondent. The voetstoots clause does not protect a seller who intentionally conceals a latent defect. The misrepresentation was material and induced the respondent to enter into the contract, causing prejudice and pecuniary loss. The appeal was dismissed as the appellants' conduct fell within the exceptions to the protection of the voetstoots clause, and the respondent was entitled to relief.

Citation
[2015] ZAGPPHC 835
Parties
Appellant: Bhamjee Ismail N.O; Appellant: Bhamjee Aboobaker N.O; Respondent: Erf 87 Dullstroom CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 December 2015
Case Number
A357/2015
Procedural Posture
Civil Appeal / Appeal From Magistrates Court Judgment
Outcome
Appeal dismissed for want of merit.
Judges
M.G Phatudi, M. Jansen
Legal Topics
Voetstoots Clause, Latent Defect, Misrepresentation, Actio Quanti Minoris, Duty of Disclosure
Land and Property Civil Procedure Voetstoots Clause Latent Defect Misrepresentation Actio Quanti Minoris Duty of Disclosure

Case Brief

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Parties

Bhamjee Ismail N.O

Appellant

Bhamjee Aboobaker N.O

Appellant

Erf 87 Dullstroom CC

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrates Court Judgment

Legal Issues

  1. 1 Whether the road reserve on the property constituted a latent defect not disclosed to the purchaser.
  2. 2 Whether the voetstoots clause in the deed of sale protected the seller in circumstances of intentional non-disclosure.
  3. 3 Whether the misrepresentation regarding the property was material and induced the respondent to enter into the contract.

Ratio Decidendi

The court found that the appellants were aware of the road reserve, which constituted a latent defect, and failed to disclose this to the respondent. The voetstoots clause does not protect a seller who intentionally conceals a latent defect. The misrepresentation was material and induced the respondent to enter into the contract, causing prejudice and pecuniary loss. The appeal was dismissed as the appellants' conduct fell within the exceptions to the protection of the voetstoots clause, and the respondent was entitled to relief.

Court Disposition

Appeal dismissed for want of merit.

Orders

  • The appeal is dismissed.
  • The appellants are ordered to pay the costs, including the costs of counsel.