Module: Commercial Law $201$

QUESTION TWO $[30]$

Siyanda purchased a sprawling mansion from Neville in Morningside, Durban, subject to a

Voetstoots clause. Neville notified Siyanda of a leak in the ceiling which he claimed he had fixed.

Three months later, Siyanda found herself rushing around to salvage her possessions after Durban$$s

seasonal rains pooled in her and her family$$s bedrooms and living space. Siyanda$$s bedding,

carpets, furniture and appliances were damaged from the leaking roof.

An engineer$$s report found a poorly constructed roof, coupled with evidence of various earlier efforts

to fix leaks such as a huge plastic sheeting that was placed in the roof to cover multiple holes in the

ceiling.

$2$

Siyanda is furious and wants to hold Neville liable for the damages she suffered amounting to R$175$

$000.$ However, Neville refuses to be held liable for the damages Siyanda suffered and claims that he

is protected by the Voetstoots clause in their Purchase and Sale agreement.

Siyanda comes to you seeking advice.

$2\mathrm{.}1$ Determine whether the leaking roof is considered a latent or patent defect and provide a

reasoning for your determination. $(5)$

$2\mathrm{.}2$ Determine the function of a voetstoots clause in a purchase and sale agreement. $(5)$

$2\mathrm{.}3$ Advise Siyanda on whether she can hold Neville liable for the damages in the given

circumstances. $(10)$

$2\mathrm{.}4$ Identify and explain the remedies available to a buyer in the case of immovable property

bought containing latent defects.