Property defect warning for homebuyers in South Africa

Homebuyers in South Africa must now be extra cautious, as a High Court ruling confirmed that marketing terms such as “stunning” are not legal guarantees, and that estate agents are not liable for undisclosed latent defects.

VDM Incorporated’s Director of Community Schemes and Compliance, Johlene Wasserman, said an important High Court judgment has brought long‑awaited clarity to estate agents, sellers, buyers, and the broader property market.

In Fitzpatrick v Latsky N.O. and Others, the Western Cape Division of the High Court has ruled in favour of an estate agent, his company, and the seller of a residential property.

This followed the court’s finding that the plaintiffs failed to establish a prima facie case for any of their claims.

“The ruling provides clear guidance on the legal meaning of marketing language, the scope of an estate agent’s duty, the strength of voetstoots clauses, and the limits of the Consumer Protection Act (CPA) in private property transactions,” Wasserman said.

She noted that the case’s timeframe is also striking. The property was purchased in October 2013, and the house’s deck collapsed in August 2014.

However, the judgment was only delivered on 25 February 2026 – more than 12 years after the sale and more than 11 years after the alleged defect manifested.

The trial also occupied the High Court for nine separate days, spread across multiple years, before judgment was handed down.

The extended duration of the litigation underscores the high financial, emotional, and professional cost of property disputes, even where claims ultimately fail at the prima facie stage, Wasserman said.

The matter was decided on an application for absolution from the instance at the close of the plaintiffs’ case.

“This procedural step is significant – the court was required to consider the evidence at its highest and determine whether there was any basis on which a court could reasonably find for the plaintiffs. The court held that it could not,” she explained.

‘Stunning’ is not a legal promise

A central issue, Wasserman said, was whether describing a property as “stunning” or “beautiful” during marketing could amount to a legally actionable misrepresentation.

“The court confirmed a long‑standing principle of law known as ‘sales puffery’. Sales puffery refers to enthusiastic, promotional language expressing opinion rather than fact,” she explained.

“In property transactions, words such as ‘stunning’, ‘beautiful’ and even ‘in excellent condition’ are not guarantees of structural integrity, safety, or regulatory compliance.”

Accordingly, the court found that the estate agent made no representations of fact about the structural condition of the decks, the absence of latent defects, or compliance with building plans.

Wasserman explained that the judgment provides important clarification on the scope of an estate agent’s duty of disclosure, particularly under the law applicable at the time of the sale.

“Estate agents are required to disclose material facts within their personal knowledge, but they are not expected to conduct engineering inspections or uncover hidden structural defects unless special circumstances exist,” she said.

“Expert evidence showed that the defects were latent and not detectable by a layperson. As a result, the agent could not be held liable for failing to identify or disclose them.”

Another unusual element of the case involved the plaintiffs calling the estate agent as their own witness.

“Calling your opponent as a witness means that a party is generally bound by their witness’s evidence,” Wasserman said.

“The judgment specifically noted that while the plaintiffs called Mr Latsky as their witness, his testimony actually undermined their own case. He credibly maintained that he had no knowledge of the structural defects, and he was believed.”

Powerful shield for sellers

Wasserman noted that the property was sold subject to a voetstoots clause. To defeat the clause, a purchaser must prove that the seller had actual knowledge of the defect and deliberately concealed it with the intent to defraud.

“The court found no evidence of either. Even the plaintiffs conceded that the seller was honest and likely unaware of the defect,” she said.

The court also dismissed all of the buyer’s CPA claims in this case. Wasserman explained that they found that –

• No misleading or deceptive marketing was established
• The seller was a one-off private seller outside the CPA’s scope
• Strict liability under section 61 did not apply
• Section 52 relief requires a proven CPA contravention
• Section 113 vicarious liability is derivative and could not arise

The plaintiffs claimed the cost of replacing the decks, but the court clarified that under the actio quanti minoris, the correct measure is the reasonable cost to cure.

It was not, in fact, replacement or upgrading costs. “This failure of quantification was fatal to their damages claim,” Wasserman pointed out.

Despite the claim falling within the Magistrates’ Court’s jurisdiction, the High Court awarded Scale B costs, citing the complexity of the case, the number of claims, and the extensive expert evidence.

“Beyond the legal principles it clarifies, the case serves as a powerful reminder of how long, complex, and costly property litigation can become – even where claims ultimately fail,” Wasserman said.

For estate agents, sellers, and buyers alike, Wasserman explained that the judgment reinforces a simple message.

“Clear disclosure, disciplined compliance, and careful documentation remain the most effective way to avoid disputes that can last more than a decade,” she said.