Van Der Merwe v Meades (173/89) [1990] ZASCA 150; 1991 (2) SA 1 (AD); [1991] 4 All SA 42 (AD) (28 November 1990)

Van Der Merwe v Meades (173/89) [1990] ZASCA 150; 1991 (2) SA 1 (AD); [1991] 4 All SA 42 (AD) (28 November 1990)

The Supreme Court of Appeal held that, under South African common law, a voetstoots clause generally protects the seller from liability for latent defects unless the purchaser can prove that the seller was aware of the defect at the time of sale and intentionally concealed it with the aim of defrauding the purchaser. The evidence did not establish that Van der Merwe was aware of the dangerous latent defect in the roof or that he fraudulently concealed its existence from Meades. The appellant was reassured by the previous owner's statements regarding the safety of the roof, and there was no credible evidence that he knew the nature and extent of the defect. Consequently, the respondent...

Citation
[1990] ZASCA 150
Parties
Appellant: P J van der Merwe; Respondent: D J Meades
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 November 1990
Case Number
173/89
Procedural Posture
Civil Appeal / Appeal From High Court Judgment
Outcome
Appeal upheld; High Court order set aside; claim dismissed with costs.
Judges
Joubert, Nestadt, Kumleben, Grosskopf, Nienaber
Legal Topics
Voetstoots Clause, Latent Defects, Burden of Proof, Fraudulent Concealment
Land and Property Civil Procedure Voetstoots Clause Latent Defects Burden of Proof Fraudulent Concealment

Case Brief

Summary, issues, holding and outcome

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Parties

P J van der Merwe

Appellant

D J Meades

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment

Legal Issues

  1. 1 Whether the seller can be held liable for latent defects in the property despite a voetstoots clause.
  2. 2 What must a purchaser prove to deprive the seller of the protection of a voetstoots clause.
  3. 3 Whether the seller was aware of the latent defect at the time of sale and fraudulently concealed it.

Ratio Decidendi

The Supreme Court of Appeal held that, under South African common law, a voetstoots clause generally protects the seller from liability for latent defects unless the purchaser can prove that the seller was aware of the defect at the time of sale and intentionally concealed it with the aim of defrauding the purchaser. The evidence did not establish that Van der Merwe was aware of the dangerous latent defect in the roof or that he fraudulently concealed its existence from Meades. The appellant was reassured by the previous owner's statements regarding the safety of the roof, and there was no credible evidence that he knew the nature and extent of the defect. Consequently, the respondent...

Court Disposition

Appeal upheld; High Court order set aside; claim dismissed with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the court a quo is replaced with: 'The claim is dismissed with costs.'