Maloka v Vermeulen and Another (2017/4418) [2023] ZAGPPHC 13 (5 January 2023)

Maloka v Vermeulen and Another (2017/4418) [2023] ZAGPPHC 13 (5 January 2023)

The court found that the property suffered from latent damp defects which were not visible at the time of sale but existed during the defendants' ownership. The evidence established that the defendants must have known about the damp issues, given the extensive maintenance and repairs undertaken, and deliberately failed to disclose these defects to the plaintiff. The voetstoots clause does not protect a seller who fraudulently conceals known latent defects. The expert evidence, corroborated by both parties' experts, confirmed the existence and extent of the defects and the reasonable cost of repairs. The plaintiff proved her entitlement to damages, with the quantum adjusted for duplicated...

Citation
[2023] ZAGPPHC 13
Parties
Plaintiff: Molatelo Maloka; Defendant: Nicholas Francois Vermeulen; Defendant: Hesta Vermeulen
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 January 2023
Case Number
2017/4418
Procedural Posture
Civil Trial / Judgment After Trial
Outcome
Judgment for the plaintiff. The defendants are ordered to pay the plaintiff the sum of R417,787.77 plus interest and costs.
Judges
Mokose
Legal Topics
Latent Defects, Voetstoots Clause, Fraudulent Non Disclosure, Actio Quanti Minoris, Contractual Damages, Property Sale Agreement
Land and Property Civil Procedure Commercial and Corporate Latent Defects Voetstoots Clause Fraudulent Non Disclosure Actio Quanti Minoris Contractual Damages +1 more

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Parties

Molatelo Maloka

Plaintiff

Nicholas Francois Vermeulen

Defendant

Hesta Vermeulen

Defendant

Procedural Posture

Civil Trial / Judgment After Trial

Legal Issues

  1. 1 Whether the defendants were aware of latent defects in the property sold to the plaintiff.
  2. 2 Whether the defendants deliberately concealed the existence of such defects with intent to defraud the plaintiff.
  3. 3 Whether the voetstoots clause protects the defendants from liability for latent defects known to them.

Ratio Decidendi

The court found that the property suffered from latent damp defects which were not visible at the time of sale but existed during the defendants' ownership. The evidence established that the defendants must have known about the damp issues, given the extensive maintenance and repairs undertaken, and deliberately failed to disclose these defects to the plaintiff. The voetstoots clause does not protect a seller who fraudulently conceals known latent defects. The expert evidence, corroborated by both parties' experts, confirmed the existence and extent of the defects and the reasonable cost of repairs. The plaintiff proved her entitlement to damages, with the quantum adjusted for duplicated...

Court Disposition

Judgment for the plaintiff. The defendants are ordered to pay the plaintiff the sum of R417,787.77 plus interest and costs.

Orders

  • The defendants shall pay to the plaintiff, jointly and severally, the one paying the other to be absolved, the sum of R417,787.77 plus interest at the rate of 10.25% per annum from the date of summons to the date of final payment.
  • The defendants shall pay the costs of suit.