The judgment handed down by the Supreme Court of Appeal (SCA) on 15 June 2023 in Le Roux v Zietsman and Another (330/2022) [2023] ZASCA 102 is among the recent cases that focused on latent defects and whether a seller is liable for fraudulent non-disclosure and misrepresentation of defects in a property.

The Zietsman case is based on the purchase of a property by Mr and Mrs Zietsman (the respondents) from Mr Le Roux (the appellant) in July 2011. The respondents intended to use the property for a guesthouse.

The respondents had noticed signs of leaks in the guesthouse before purchasing the property and queried the leaks with the appellant. The appellant, however, assured the respondents that the roof had been repaired and no longer leaked.

Three months after the transfer of the property to the respondents, a heavy storm occurred. This caused the roof to leak severely, damaging rooms and furniture. The respondents repaired the leaks to the best of their ability, as funds were limited, but despite such attempts the roof still leaked after any rainfall.

Civil engineer’s investigation

In 2013 the respondents appointed a civil engineer to investigate the roof leak. The civil engineer detected that the likelihood of the roof having leaked since the property was constructed was high. He also noted that there was evidence showing previous attempts to seal off the roof and discovered new cracked ridge tile evidence, which indicated that the leakage had deteriorated even further over time. There was also evidence that the tiles were damaged during maintenance and repainting of the roof. The civil engineer concluded his findings that “any claim by the previous owner that no problems with roof leak were experienced in the past would simply be impossible and untruthful”.

In 2014, the maintenance became unaffordable, and the respondents secured a loan for additional repair work.

The respondents instituted action in the Regional Court in Tzaneen, Limpopo for damages and loss of income. The Regional Court ruled in favour of the respondents.  The appellant appealed to the High Court. The High Court upheld the judgment of the Regional Court, and the appeal was dismissed with costs.

The appellant then appealed to the SCA. The court found that the main issue was “whether the appellant, knowing the purpose for which the property was to be used, and having knowledge of the latent defect in the property (the leaking roof), fraudulently failed to disclose same to the respondents before the sale with the aim to induce the sale”.

The SCA upheld the decision of the Regional Court and High Court and concluded that the appellant’s actions amounted to fraudulent non-disclosure and fraudulent misrepresentation to persuade the respondents to purchase the property.

In terms of the Property Practitioners Act 22 of 2019 (which came into operation on 1 February 2022), it is now mandatory for sellers to disclose defects in a property. Non-disclosure of defects known to the seller could amount to unnecessary financial and legal penalties for the seller.

It is therefore vitally important, and the law requires, that a seller disclose all known defects to the purchaser to prevent any future disputes, as it appears clear from the above that even the highest courts may well favour a purchaser’s claim if enough evidence is shown.