QUESTION

Defects and voetstoots clauses

Mr Muthwa has obtained bond finance through First Republican Bank. The client

has taken transfer of the property in August 2020. Since the client has been in

the property, he has discovered the following:

1. The wall against which the seller's wall unit was in the lounge has a huge zig-

zag crack in it.

2. The buyer has seen some serious damp spots in the second bedroom, which

was covered by the curtains in the room.

3. It appears that there is a leak in the roof in the kitchen.

4. There is no hot water coming from the geyser. The buyer has had a plumber

in and the plumber says that the geyser is ten years old and needs to be

replaced.

5. The front gate does not work and the motor needs to be replaced. The gate

company says that it appears that the motor has just recently been repaired as

an interim measure to keep it going, but that the seller must have known that

the motor needed to be replaced.

The buyer has spoken to the seller about these issues. The seller says that he

informed the estate agent about these issues before he gave the agent a

mandate and that the buyer must take it up with the agent. The seller also said

that, "...in any event, the house was sold voetstoots."

The buyer asked one of First Republican Bank's home loans assessors to come

back and look at the property now. The assessor has told you that, in its present

state, the house is worth 70% of the value that he initially assessed the property

at.

Mr Muthwa says that the assessor should have picked up all of these issues

previously and that this is all First Republican Bank's fault because he would

never had bought the house had he known about these issues.

Advise Mr Muthwa accordingly.

2

Guidelines:

When answering a legal problem, it is suggested that you follow the following

outline:

a. State the problem - what is the problem that you are dealing with

in the question?

b. State the law - what does the law say about the problem that we are

dealing with? This is the value of using the case law as it enables you to

look back at previous cases and see what the courts did when a similar

problem has arisen before.

c. Apply the law to the facts - can the law be applied to the current situation

or problem that you are discussing? If so, what would the outcome be?

d. Come to a conclusion - arrive at a conclusion paying due regard to points

a, b and c above.