The word “voetstoots” found its way into South African law via the Roman-Dutch law. The term is a common known term. Voetstoots essentially means that the seller will not be held responsible for the “diseases” and defects of goods sold. Thus, you buy the goods “as is”.
The questions whether the voetstoots clause has survived in terms of the Consumer Protection Act, Act 68 of 2008 (hereafter “the CPA”), has been debated numerous times.
The Consumer Protection Act
In terms of Section 55(2) of the CPA the consumer has the right to safe, good quality goods. The goods must also be:
1. Reasonably suitable for the purpose for which they are generally intended or suitable for any specific purpose which was communicated to the supplier;
2. Of good quality, in working order and free from defects;
3. Usable and durable for a reasonable period of time;
4. Compliant with any other legislation, which regulates their quality.
Abovementioned section creates a tacit and/or implied term in the agreement with regards to the quality of the item concerned. The consumer therefore automatically has abovementioned rights concerning the goods or item(s) purchased.
One of the most compelling arguments, that the voetstoots clause is no longer an available remedy and/or clause in an agreement, is as result of section 51(1)(i). In terms of this section, a supplier must not make a transaction or agreement subject to any term or condition if it waives or deprives a consumer of a right in terms of the CPA. The argument is that a voetstoots will clearly deprive the consumer of his/her rights in terms of abovementioned section 55(2) and therefore, is not allowed.
Another argument is that of Section 48(1)(c); it states that a supplier may not request a consumer to waive any of his/her rights or waive the liability of a supplier. Any clause limiting a consumer’s rights cannot be unreasonable, unfair or unjust. Thus, once again voetstoots limits the liability of a supplier and is unenforceable by a supplier.
Section 55(6) will allow a supplier to escape liability for defective goods if, when the supplier sold the goods to the consumer, the consumer was fully aware of the defects of the goods. If the supplier when concluding the sale informed the consumer expressly about any defects i.e. verbally or in writing, the consumer will not be able to hold the supplier liable for these defect. In this instance, the supplier does not escape liability as result of a voetstoots clause. He may only escape liability as a result of the fact that the defects were made known to the consumer.
Until abovementioned debate has been settled by the South African courts we can only speculate as to the correct interpretation and application of the voetstoots concept. Suppliers should beware and be cautious when selling goods to consumers. They should seek the assistance of an attorney before doing so.
Written by Anye Jansen van Rensburg, associate, SchoemanLaw