Cox Yeats

ATTORNEYS
March 2004

CONSTRUCTION LAW BULLETIN

paving laid on the fill. No provision was made for drainage of the newly filled area. VOETSTOOTS CLAUSES Voetstoots clauses are invariably included in sale contracts relating to immovable property. Their purpose is to insulate a seller against claims by the buyer relating to latent defects in the property. In terms of our common law, sellers impliedly warrant to buyers that articles sold are free of latent defects. Ordinarily the only limitation on the protection afforded by such clauses is in those circumstances where the seller knows about the defect at the time of the sale and purposefully conceals the defect from the buyer. The Cape High Court 1 at the end of last year added a further limitation to the reach of voetstoots clauses. In carrying out this work, Mr Barnes did not see fit to enlist the advice or the services of a structural engineer or any other suitably qualified person. In May 1997 Mr Barnes sold the property to the P&L Trust. The sale agreement contained the following provision: 9. Warranties and undertakings 9.1 The property is hereby sold voetstoots subject to all existing servitudes and title deed conditions. Approximately a year later, in 1998, the retaining wall collapsed causing extensive damage. The P&L Trust sued Mr Barnes for the costs of repairing the retaining wall and the damage caused by its collapse. BASIS OF CLAIM Had the voetstoots clause not been contained in the sale agreement, the P&L Trust would have been entitled to base a claim on the common law implied warranty against latent defects which is a normal incidence of every sale contract. The Trust initially contended that the voetstoots clause did not apply because Mr Barnes had been aware of the defect and had intentionally concealed it. The Trust however did not persist with this line of attack. The Trusts principal attack was advanced not in the law of contract but in the law of delict. In terms of the law of delict you can be held liable for damages suffered by another person if the requis ite ingredients giving rise to delictual liability are present. The ingredients for delictual liability are:

THE FACTS In 1996 Mr Henry Barnes bought a vacant property on a steep slope on the Tygerberg overlooking the Cape Peninsula. He designed and built a dwelling on the property. On the southern boundary between the property and a lower adjoining property there was a pre-existing retaining wall approximately 2 metres high which had been erected by the neighbour. Mr Barnes, with the permission of the neighbour, increased the height of the retaining wall by building on top of it. In doing so, Mr Barnes increased the retaining part of the wall and built a free standing wall on top of the retaining section of approximately 1,2 metres. Fill was placed against the new retaining section and
1

Paul Leatham Humphrys NO v Henry John Barnes High Court of South Africa, Cape of Go od Hope Provincial Division, Case No A1236/02.

Page 2

A wrongful act an act is wrongful if you owe a person a duty of care and you transgress that duty. Fault fault is present if you have acted negligently or intentionally. You are negligent if you foresee the possibility of harm and you do not take reasonable and practicable steps to guard against the harm arising. Patrimonial loss caused by the negligent or intentional action.

The court explained that a voetstoots clause only limits the contractual liability of a seller for latent defects in the property sold. It does not exclude liability for anything else such as for example negligence or misrepresentation.3 It would have been permissible for Mr Barnes to have included a clause excluding liability for delictual claims in the sale agreement. In the absence of such a provision, Mr Barnes was held liable for the Trusts damages claim. Sellers beware.

The Trust argu ed that Mr Barnes had owed it and for that matter successive purchasers of the property a duty of care and that he had breached that duty of care by negligently constructing a retaining wall without the necessary structural integrity and not in accordance with the National Building Regulations. Importantly, he had failed to secure the services of a competent structural engineer in building the wall.

PRESCRIPTION OF ARBITRATORS AWARD An arbitrators award prescribes after the elapse of three years unless it is made an order of court in which case a 30 year prescriptive period applies.4

COURTS FINDING Expert evidence at the trial demonstrated that the increased fill, the free standing wall on top of the retaining wall and the lack of drainage all contributed to an excessive increase in the bending moment of the wall which caused its collapse. The court in fact found that neither the original retaining wall nor the extension constructed by Mr Barnes had been built with the necessary structural integrity and in accordance with the National Building Regulations. In the circumstances the court found that both the neighbour and Mr Barnes had breached a duty of care owed to successive owners of the Barnes property to ensure the integrity of the structure and their negligence in this regard had caused the collapse of the wall. The Trust had in the action only made a claim against Mr Barnes and not the neighbour. Whilst this may at first blush appear to be unfair, it is expressly allowed in our law of delict where the principle has been expressed as follows 2 : a plaintiff can hold a defendant liable whose negligence has materially contributed to a totality of loss resulting partly also from the acts of other persons or from the forces of nature, even though no precise allocation of portions of the loss to the contributing factors can be made. In relation to whether the voetstoots clause provided Mr Barnes with a shield against the Trusts delictual claim, the court found that it did not.
3 4 2

ALASTAIR HAY COX YEATS 12th Floor, Victoria Maine 71 Victoria Embankment P O Box 3032 DURBAN Tel: (031) 304 2851 Fax: (031) 301 3540 ahay@coxyeats.co.za

Kakamas Bestuursraad v Louw 1960(2) SA 202A at 222A-C.

Cockroft v Baxter 1955(4) SA 93C at 98B-C. Prima Vera Construction v Government North West Province 2003(3) SA 579B.