A recent High Court judgment serves as a notable warning for anyone buying or selling property in South Africa.
The case centred on a property purchased in October 2013. Less than a year later, in August 2014, a wooden deck on the property collapsed, prompting legal action from the buyers.
However, judgment was only handed down on 25 February 2026—more than 12 years after the sale and over 11 years after the defect first emerged.
The court ultimately ruled in favour of the estate agent, his company, and the seller, finding that the plaintiffs failed to establish a prima facie case.
According to Johlene Wasserman, Director of Community Schemes and Compliance at VDM Incorporated, the outcome provides critical clarity for the property market.
“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,” she said.
Wasserman noted that the length of the case also highlighted the significant costs involved in property disputes.
“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,” she said.
A key issue before the court was whether descriptive terms used in property marketing (such as “stunning” or “beautiful”) could amount to misrepresentation.
The court reaffirmed the long-standing legal principle of “sales puffery,” which distinguishes between opinion and fact.
“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,” Wasserman explained.
“In property transactions, words such as ‘stunning’, ‘beautiful’ and even ‘in excellent condition’ are not guarantees of structural integrity, safety, or regulatory compliance.”
Estate agents are not structural engineers
The judgment also clarified the role and responsibilities of estate agents. Wasserman stressed that agents are not expected to identify hidden structural defects unless there are special circumstances.
“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 feature of the case was that the plaintiffs called the estate agent as their own witness—an approach that ultimately backfired.
“Calling your opponent as a witness means that a party is generally bound by their witness’s evidence,” Wasserman said.
“While the plaintiffs called Mr Latsky as their witness, his testimony actually undermined their own case. He credibly maintained that he did not know about the structural defects, and he was believed.”
The property had been sold subject to a voetstoots clause, meaning “as is.” To overcome such a clause, a buyer must prove that the seller had actual knowledge of the defect and deliberately concealed it.
“The court found no evidence of either. Even the plaintiffs conceded that the seller was honest and likely unaware of the defect,” she said.
Claims under the Consumer Protection Act also failed. The court found no misleading marketing, ruled that the once-off private seller fell outside the CPA’s scope, and determined that strict liability provisions did not apply.
Wasserman added that the plaintiffs’ damages claim was further weakened by incorrect quantification.
“Under the actio quanti minoris, the correct measure is the reasonable cost to cure, not replacement or upgrading. This failure of quantification was fatal to their damages claim,” she said.
