Odendaal v Ferraris

The appellant sold a residential property to the respondent subject to a voetstoots clause. After taking occupation, the respondent discovered various defects, including physical defects (faulty jacuzzi, leaking pool and roof, collapsed staircase railing, borer beetle infestation) and regulatory defects (unauthorised carport and outbuilding, non-compliance with municipal building regulations). He instructed his bank not to proceed with bond registration pending resolution, asserting a right to a price reduction or cancellation under the aedilitian remedies. The seller treated this as repudiation, cancelled the agreement, and sought eviction under PIE. The High Court refused eviction, holding the purchaser entitled to rely on aedilitian remedies. The seller appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The High Court’s order was set aside and replaced with an order granting the eviction application. The respondent was ordered to vacate the property on or before 30 November 2008.

This case is a leading authority on the scope of voetstoots clauses in South African law. It clarifies that statutory non-compliance relating to building approvals can constitute a latent defect covered by a voetstoots clause, unless it renders the property unfit for its intended purpose or is fraudulently concealed. The judgment limits the reach of Van Nieuwkerk v McCrae and provides authoritative guidance on the interaction between aedilitian remedies and voetstoots clauses.