Banda v Van der Spuy

The respondents sold a house with a thatch roof to the appellants under a contract containing a voetstoots clause. Prior to the sale, the roof leaked and the respondents undertook certain repairs. An addendum to the sale agreement recorded that the seller would transfer a guarantee on the thatch roof to the purchasers. In truth, the guarantee had already expired and the respondents knew this. After transfer, the roof continued to leak. Expert evidence showed that the roof had latent structural defects, including inadequate support and design, and an insufficient pitch, which rendered it unfit and required complete reconstruction. The respondents were aware that the repairs had not permanently remedied at least one of the causes of the leaking roof but failed to disclose this and misrepresented the existence of a valid guarantee.

The appeal was upheld with costs. The High Court order was set aside and replaced with an order directing the respondents, jointly and severally, to pay the appellants R449 499 with interest at 15.5% per annum from 23 September 2011, together with costs of suit.

The case clarifies that fraudulent concealment of known latent defects defeats reliance on a voetstoots clause, even where the seller is unaware of all causes of the defect. It also confirms that a fraudulent misrepresentation inducing a sale or purchase price can ground delictual damages measured by the cost of repair, and that causation is not confined to the precise scope of a misrepresented guarantee.