THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 781//2011
Reportable

In the matter between:

RAYMOND BANDA
FIRST APPELLANT

PATRICIA FYNN
SECOND APPELLANT

and

FRANK JOHANNES VAN DER SPUY
FIRST RESPONDENT

ALICIA ANASTASIA VAN DER SPUY
SECOND RESPONDENT

Neutral citation:
Banda v Van der Spuy (781/2011) [2013] ZASCA 23 (22
March 2013)

Coram:
Lewis, Maya, Cachalia JJA and Erasmus and Swain AJJA

Heard:
7 March 2013

Delivered:
22 March 2013

Summary:
Knowledge by the sellers of a house that its roof was
latently defective and that repairs to it had not properly
rectified the latent defect, which they fraudulently
concealed, vitiated the effect of a voetstoots clause –
an  alternative cause of action based upon a fraudulent
misrepresentation by the sellers as to the existence of
a guarantee in respect of the repairs, which induced
the buyers to purchase the house – alternatively, agree
upon the price, was causally related to the damage
suffered, being the cost of repairing the roof – this was
so despite the fact that the guarantee did not cover all
of the defects which caused the roof to leak and sellers
were unaware of an additional cause of the leak.

ORDER

On appeal from: South Gauteng High Court, Johannesburg (Boruchowitz J
sitting as court of first instance):

1 The appeal is upheld with costs.
2 The order of the high court is set aside and is substituted with the following
order:
‘The defendants are ordered jointly and severally to pay to the plaintiffs the sum
of R449 499 together with interest thereon at the rate of 15.5 per cent per
annum from the date of judgment, being 23 September 2011, and costs of suit
including the qualifying fees of Mr Visagie.’

JUDGMENT
_______________________________________________________________
SWAIN AJA (LEWIS, MAYA AND CACHALIA JJA AND ERASMUS AJA
concurring):
[1] A thatch roof that leaked prior to the sale of a house by the respondents
to the appellants, and which continued to leak after the sale, gave rise to the
present dispute between the parties.
[2] The main claim advanced before the South Gauteng High Court
(Boruchowitz J) by the appellants, was based upon the actio quanti minoris, in
which a reduction in the purchase price was sought, being the cost of repairing
the roof, to cure the leaks. The agreement of sale contained a voetstoots
clause. This placed the added burden upon the appellants of not only proving
the existence of the latent defects in the roof, but also that the respondents

were aware of these defects which caused the roof to leak, and thereby
fraudulently neglected to inform the appellants of their existence.
[3] Two further alternative causes of action were advanced by the
appellants. One was based upon a fraudulent misrepresentation by the
respondents as to the existence of a guarantee in respect of repairs done to the
roof and the other was founded on the actio ex empto. None of these claims
found favour with the trial court, with the result that they were dismissed. The
appellants were granted leave to appeal to this court.
[4] The trial court found that the defects in the roof were latent in nature,
but upheld the defence of the respondents that they were excused from liability
by virtue of the provisions of the voetstoots clause. The trial court found that the
appellants had failed to establish on a balance of probabilities that, when the
sale agreement was concluded, the respondents had knowledge of the latent
defects ‘and designedly, craftily or fraudulently, concealed their existence from
the plaintiffs’.
[5] There is no challenge by the respondents by way of a cross-appeal
against the finding of the trial court, that there were latent defects in the roof at
the time of the sale. Indeed, from the evidence it is abundantly clear that this
was the case.
[6] Accordingly the issue for determination is whether the appellants
proved the requisite knowledge on the part of the respondents of the latent
defects in the roof, which they then fraudulently concealed from the appellants.
By virtue of the fact that it was common cause that the respondents had
effected repairs to the roof before the sale, this would also embrace a
determination of the issue of whether, to the knowledge of the respondents,
these repairs did not properly or adequately rectify the defects in the roof to
prevent the roof leaking.
[7] In order, however, properly to address the issue of whether the
respondents possessed knowledge of the latent defects in the roof, it is

necessary to briefly deal with the evidence concerning the nature of the defects
in the roof, which caused the roof to leak. The evidence led by the appellants
was that of Mr Jan de Wet Bornmann, an independent assessor of insurance
claims, employed by the bond holder over the house, namely Absa Bank and
Mr Abraham Visagie, a professional engineer who was called as an expert
witness. No evidence was led by the respondents to contradict the testimony of
these witnesses.
[8] The evidence of these two witnesses clearly established that the cause
of the leaks in the roof was twofold. Bornmann’s evidence was that the wooden
roof poles were inadequate properly to support the weight of the thatch roof and
would have to be reinforced. As a result, the roof was gradually collapsing,
moving downwards, as well as laterally. As a consequence of the movement in
the roof, openings had appeared between the flashing and the thatch, through
which rainwater had gained ingress and flowed down the internal walls of the
house.
[9] Visagie testified that the cause of the leaks was the inadequate pitch of
the roof. The recommended pitch for a thatch roof was 45 degrees. The roof of
the house was less than 30 degrees in places and could not be regarded as
functional, because the thatch fibres would have a negative gradient and water
would not run off the roof, but into the thatch. As a consequence, the thatch
would stay wet and would rot much more quickly than it was supposed to. Much
of the top layer of thatch had rotted away when he inspected the roof and leaks
had occurred in various locations. In addition, severe deflection was visible in
the ridge line which he regarded as a failure. At the time the repairs to the roof
were carried out, it had already deflected beyond the point of repair. In Visagie’s
opinion, the only way to repair the roof was to demolish it and reconstruct it in
accordance with a properly engineered design with the correct pitch.
[10] The trial court correctly found in the light of this evidence that the design
of the roof structure was inadequate, the thatch roof was not functional, leaks
would occur and the remedial work performed would not make the structure

safe and pass engineering guidelines. As pointed out, the trial court then
concluded that these defects were clearly latent.
[11] An assessment of whether the appellants proved that the respondents
knew of the latent defects in the roof which caused it to leak, and whether they
also knew that the repairs effected would not permanently solve the problem of
it leaking, in the face of the first respondent’s denial that he possessed such
knowledge, requires an assessment of the objective facts. Any inference must
be drawn from the facts revealed by the evidence.
[12] As pointed out in R v Myers 1948 (1) SA 375 (A) at 383:
‘. . .absence of reasonable grounds for belief in the truth of what is stated may provide
cogent evidence that there was in fact no such belief.’
Similarly in Hamman v Moolman 1968 (4) SA 340 (A) at 347A the following was
added:
‘The fact that a belief is held to be not well-founded may, of course, point to the
absence of an honest belief, but this fact must be weighed with all the relevant
evidence in order to determine the existence or absence of an honest belief.’
[13] Central to this enquiry is the evidence concerning the undertaking given
by the first respondent to the appellants, contained in an addendum to the
contract of sale, executed on 25 July 2007 providing as follows: ‘Seller to
transfer guarantee on thatch roof to purchaser from the contractor.’ The first
respondent was forced to concede that when he signed the addendum, to his
knowledge, there was no guarantee in existence, because the time period for
which it was furnished had expired. The trial court correctly concluded that: ‘To
have undertaken in these circumstances to provide a guarantee was thoroughly
misleading and in my view fraudulent’. In addition, a consideration of the first
respondent’s evidence in relation to what he alleged was the duration of the
guarantee, reveals a similar distressing lack of veracity.

[14] The first respondent’s legal representative presented the respondents’
case on the basis that Braaff, the contractor, had given an oral guarantee of one

year to first respondent’s brother. However, when giving evidence the first
respondent said that he asked Braaff for a guarantee until after the rains, to
which Braaff agreed. When the first respondent was asked where his legal
representative had obtained the idea that the guarantee was for one year, he
gave a clearly fallacious reply in which he attempted to reconcile a guarantee
for one year with the date in the following year when the first rains fell.
[15] On the other hand Braaff maintained that the first respondent had asked
for a guarantee for six months, to which he agreed. It is significant that when
Braaff was asked to furnish a guarantee, which he did on 27 July 2007, to
enable the respondents to comply with their obligations in terms of the
addendum, it was for a period of six months only. This elicited no protest from
the first respondent, who maintained that he did not see the document when it
was furnished. In my view it is highly improbable that the first respondent,
knowing that the furnishing of a valid guarantee had been elevated to the status
of an obligation in terms of the addendum, would have had no interest in the
duration of the guarantee furnished by Braaff.
[16] The evidence clearly establishes that the first respondent was untruthful
concerning the duration of the guarantee. That he was dishonest in regard to
the guarantee’s duration clearly shows he appreciated the danger to the sale of
the house, inherent in a guarantee which was worthless, because it had
expired. The trial court found that ‘[o]n the probabilities the defendants gave the
undertaking to deliver, what at that stage was a non-existent guarantee,
because they did not wish to sabotage or derail the contract and hoped that in
the fullness of time there would be no need on the part of the plaintiffs to rely
upon same’. The trial court did not, however, interrogate the further issue,
namely, why the respondents would fear disclosure of the non-existence of the
guarantee? If the first respondent believed in the adequacy of the repairs, why
did the first respondent not simply disclose that the guarantee had expired and
invite an inspection of the roof? That the first respondent did not do so speaks
volumes for his lack of belief in the adequacy of the repairs.

[17] It is necessary, however, to examine the relevant evidence to determine
whether there were reasonable grounds for the professed belief of the first
respondent in the adequacy of the repairs effected by Braaff. Bornmann said his
great fear, which he pointed out to the first respondent, was that if nothing was
done to stop the movement of the roof, it would become worse and could
eventually collapse, causing damage to the structure of the walls. He told the
first respondent that the reinforcement of the roof was not as he would have
wished, but what had been done was better than doing nothing. In other words,
it would delay further movement of the roof. The first respondent conceded that
Bornmann had said that the work was not done as Bornmann would have done
it, but that it was acceptable (‘aanvaarbaar’) if he could use that word.
[18] According to the first respondent, Bornmann stated that the roof was
much better than it was and that the problems with the roof had been
permanently cured (‘dit sal stopgesit word nou’). This was in direct contradiction
to what Bornmann had said, namely that the repairs would only delay further
movement of the roof, which statement was never challenged. If the first
respondent truly believed that this was Bornmann’s view of the adequacy of the
repairs, why did he not disclose the non-existence of the guarantee and refer
the first appellant to Bornmann for confirmation, that the problems in the roof
had been permanently rectified? That the first respondent did not do so again
speaks volumes for his lack of belief in the adequacy of the repairs.
[19] A further issue which must be addressed, in the context of determining
the bona fides of the first respondent’s professed belief in the adequacy of the
repairs, is his contention that he believed that the repairs were acceptable
because he continued to enjoy insurance cover over the roof by Absa
Insurance, after the repairs had been effected. It was originally put to Bornmann
that the first respondent would say that he had phoned Bornmann to inspect the
repairs, because the first respondent was worried about his insurance cover
and had wanted to be satisfied that the repairs would not place his insurance at
risk. Bornmann emphatically disputed that there was any basis upon which he
would inspect a property to certify that the property was free of any defects,

latent or otherwise, or that he would inspect the property purporting to represent
Absa and certify that the property was insurable. The first respondent
maintained that although Bornmann had said the repairs were not executed as
he would have liked, Bornmann did not explain what he meant, or elaborate
upon his reservations. When asked why he did not ask Bornmann what he
meant, he replied that it was not important to him because Absa had satisfied
him that the repairs were acceptable and he again had insurance cover on his
roof. He added that this was not conveyed to him but was what he concluded.
When the first respondent was asked why he did not directly address this issue
with Bornmann, he replied that Bornman worked with the bank and he believed
that Bornmann would correspond with the bank.
[20] In R v Myers (at 382) Greenberg JA, quoting Halsbury 2 ed vol 23 sec
59, stated that a belief is not honest which
‘though in fact entertained by the representor may have been itself the outcome of a
fraudulent diligence in ignorance – that is, of a wilful abstention from all sources of
information which might lead to suspicion, and a sedulous avoidance of all possible
avenues to the truth, for the express purpose of not having any doubt thrown on what
he desires, and is determined to, and afterwards does (in a sense) believe.’
[21] The first respondent quite clearly avoided asking Bornmann what his
reservations were in regard to the adequacy of the repairs to the roof and
whether this would affect his insurance cover. He also avoided directing the
same enquiry to Absa Insurance. His conduct cannot be construed as anything
other than a ‘wilful abstention’ from both sources of information, which would,
according to his professed understanding of what the purpose was of
Bornmann’s visit, have led to an answer to his fears. That he did not do so
indicates an avoidance by him of all possible avenues to the truth, for the
express purpose of not having any doubt thrown upon what he desired and was
determined to believe.
[22] When all of the above is considered, it is clear that the first respondent
did not possess an honest belief in the adequacy of the repairs that were
effected to the roof, such that the problem of leaks in the roof had been

permanently addressed. Considered together with the fraudulent conduct of the
respondents in not disclosing the absence of a valid guarantee and their
dishonesty in relation to the duration of the guarantee, it is clear that they
possessed knowledge of the structural defects in the roof, identified by
Bornmann, which were a cause of the roof leaking, and which had not been
permanently repaired by Braaff. At the very least, they were conscious of the
inadequate nature of the repairs to the defects in the roof, which gave them
reasonable grounds to suspect that the leaks in the roof had not been fixed, and
they were therefore obliged to disclose this knowledge to the appellants. See A
J Kerr The Law of Sale and Lease 3 ed (2004) at 148.
[23] It is, however, clear that the respondents were not aware that an
additional cause of the leaks in the roof was the inadequate pitch of the roof as
identified by Visagie. Braaff maintained that he had identified this problem and
told the first respondent, which the first respondent denied. Braaff also said that
before he had delivered a quotation to repair the roof, he had inspected the roof
with Bornmann and they had discussed the roof and Bornmann had pointed out
to him what the problem was. If Braaff was aware of the serious problem in the
roof, namely the inadequate pitch, and had inspected the roof with Bornmann, it
is highly improbable that he would not have mentioned it to Bornmann. It is,
however, clear that Bornmann was not aware of this problem in the roof when
he compiled his report. In addition if Braaff was aware of this problem in the
roof, it is unlikely that he would have suggested repairs which would not have
addressed the problem. His explanation that he had not quoted to remove the
roof, because if he had, he would not have obtained the job, rings hollow.
Considering all of the above, it is clear that Braaff did not possess knowledge of
the inadequate slope of the roof and accordingly could not have told the first
respondent of this defect. In this context I agree with the trial court’s view that
Braaff was neither a reliable nor satisfactory witness.
[24] It is trite that a seller is liable for all latent defects which render unfit or
partially unfit, the res vendita for the purpose for which it was intended to be
used. See G R J Hackwill and H G Mackeurtan Sale of Goods in South Africa 5

ed (1984) at 135. A leaking roof is a latent defect which renders the house unfit
for habitation. The respondents were aware of one of the causes for the leaking
roof, namely inadequate roof design, which resulted in the sagging of the roof,
which had not been permanently repaired and which they had concealed. The
respondents were unaware, however, of the other cause of the leaking roof
namely, the inadequate pitch of the roof. The fact that they were unaware of an
additional cause of the leaking matters not. Their fraudulent conduct in
concealing the existence of the defective leaking roof forfeits the protection of
the voetstoots clause in respect of this latent defect.

[25] The appellants are accordingly entitled to the difference between the
purchase price of the house and its value with the defective roof. (See Hackwill
supra at 156 para 10.6.1.) No evidence was led of the market price of the house
with the defective roof at the time of the sale. It seems self-evident, however,
that there would not be a market for a house where the whole roof has to be
replaced. Where there is no market the court is entitled to fix the sum for which
the house could have been restored. (See Hackwill supra at 157 para 10.6.2.)
The cost of repairs may be used as a measure of the award to be made where
the actual value could not be determined, or is difficult to determine. See
Labuschagne Broers v Spring Farm (Pty) Ltd 1976 (2) SA 824 (T).
[26] An alternative cause of action was based upon the fraudulent,
alternatively, negligent misrepresentation by the respondents that a valid written
guarantee, regarding the soundness of the thatch roof, was in place and that
the defect had been rectified. As pointed out, the trial court found that the
respondents were aware that the guarantee had lapsed when the addendum
was signed and the undertaking to provide one was misleading and fraudulent.
The trial court found that a fraudulent misrepresentation was made by the
respondents to the appellants in regard to the guarantee. I agree with this view.
[27] The trial court, however, found that the damages claimed, being the
cost of replacing the thatch roof, did not arise as a direct consequence of the
respondents’ fraudulent conduct in relation to the guarantee. The reasoning of

the trial court was that the guarantee, even if provided by the respondents to the
appellants (presumably as a valid guarantee) would not have prevented the
appellants from suffering loss as a result of the presence of the latent defects,
because the guarantee, given by Braaff, only related to the remedial work
performed and did not operate as a guarantee in respect of all latent defects.
[28] The first appellant’s evidence was that if the first respondent had not
informed him of the guarantee he would not have signed the agreement, and if
this was conveyed to him when the addendum had been signed, he would not
have proceeded with the transaction. The first appellant also stated that if he
had been aware of the problem with the roof, he would have had an expert
assess the roof and furnish him with a quotation of what it would cost to restore
it. He would then have negotiated with the respondents regarding the quotation
because they really liked the house. If agreement could not be reached, then
they would not have gone ahead with the purchase. On the evidence, the
existence of a guarantee in respect of the repairs to the roof had played a vital
role in the conclusion of the agreement, right from the outset. It was for this
reason that it was elevated to a term of the agreement, by the first appellant, in
terms of the addendum. It is quite clear that the appellants were induced by the
fraudulent misrepresentation to conclude the sale agreement or, at least, to pay
the purchase price agreed upon.
[29] It is trite that the claim of the appellants, based as it is in delict, is one in
which the appellants seek to recover the amount by which their patrimony has
been diminished. See Trotman & another v Edwick 1951 (1) SA 443 (A) at
449B-C. The fraud of the respondents may be considered either as having
causally effected, not the transaction as a whole, but only the roof of the house,
as a distinctive part having special significance to the appellants. The fraud
therefore affected only the amount of the purchase price that the appellants
agreed to pay. On this basis the so-called ‘swings and roundabouts’ principle of
computing the damages would be inapplicable and the cost of repairing the
defect would be the appropriate measure. See Ranger v Wykerd & another
1977 (2) SA 976 (A) at 992A-B. Alternatively, the fraud of the respondents may

be regarded as causally related to and affecting the transaction as a whole. In
the present case, as in Ranger, it may be inferred as a fact that the agreed
purchase price for the house, was prima facie its actual market value in its
represented condition (with a properly repaired roof) at the time of the sale. The
first appellant stated that they had initially offered an amount less than the
asking price, which was rejected by the respondents. The respondents then
offered an amount in return as the sale price, which the appellants accepted.
The amount agreed upon constituted a small reduction in the listing price of the
agents. There was no evidence led by the respondents to disturb such a prima
facie inference on the facts of this case. (Ranger at 993C-E.)

[30] Whether the fraud of the respondents induced the appellants to
conclude the sale agreement, or simply to agree upon the purchase price, it is
clear that the fraud did occasion as cause and effect the patrimonial loss
sustained by the appellants. On either basis, the correct manner of computing
the appellants’ loss is the cost of repairing the roof. That the cost of repairing
the roof included the costs of rectifying a defect of which the respondents were
unaware ie the pitch of the roof, which was an additional cause of the roof
leaking, is irrelevant to this inquiry. That the terms of the guarantee only
covered the repairs to the roof effected by Braaff, and not all latent defects in
the roof, is likewise irrelevant.
[31] In addition, the respondents knew when making the fraudulent
misrepresentation, that because the roof had not been properly or adequately
repaired, it would leak in the future and it would have to be repaired to render
the house habitable. The evidence establishes that the reasonable cost of
repairing the roof to prevent it leaking necessitates that the roof be replaced.
That the respondents did not foresee that the reasonable cost of repairing the
roof would entail its replacement, matters not. The reasonable costs of repairing
the roof are directly and causally connected with the fraud and are not remote.
(Ranger at 994F-G.) The trial court accordingly erred in restricting the causative
effect of the fraudulent misrepresentation to those defects which would have

been covered by the invalid guarantee. It is therefore unnecessary to deal with
the remaining alternative cause of action based upon the actio ex empto.
[32] The appellants are accordingly entitled to the reasonable cost of
repairing the roof. Visagie tendered evidence that the cost of repairing the roof
in 2007 as at the date of the sale was R309 698. In the appellants’ amended
particulars of claim this was the amount advanced. Visagie stated that the cost
of rebuilding the internal walls and gables to accommodate the increased pitch
of the roof, calculated in 2010, was R110 000. This price would have to be
discounted by 30 per cent to arrive at the cost in 2007, which discount produced
an amount of R84 600. The total claim accordingly advanced by the appellants
in their amended particulars of claim was R449 499. I do not agree with the
view of the trial court that there was no justification in the evidence for the
amount claimed. Visagie explained how the calculation was done and there was
no evidence lead by the respondents to contradict his views.
[33] As regards the interest payable on this amount, in the particulars of
claim interest was claimed at the rate of 15.5 per cent per annum a temporae
mora. In the appellants’ heads of argument interest was claimed as from the
date of inception of the trial, being 8 October 2010. However, during the hearing
counsel for the appellants agreed that interest should run only from the date
upon which judgment was delivered by the trial court being 23 September 2011.
Interest will accordingly run from this date.
[34] In the result the following order is made:

1 The appeal is upheld with costs.
2 The order of the high court is set aside and is substituted with the following
order:

‘The defendants are ordered jointly and severally to pay to the plaintiffs the sum
of R449 499 together with interest thereon at the rate of 15.5 per cent per

annum from the date of judgment, being 23 September 2011, and costs of suit
including the qualifying fees of Mr Visagie.’

K G B SWAIN

ACTING JUDGE OF APPEAL

APPEARANCES:
FOR FIRST AND
M WAGENER
SECOND APPELLANTS:
BOWMAN GILFILLAN ATTORNEYS
MATSEPES INC, Bloemfontein

FOR FIRST AND
B M HEYSTEK
SECOND RESPONDENTS:
Instructed by: MARITZ BOSHOFF & DU
PREEZ INC

BEN VAN DER MERWE INC, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

22 March 2013

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

Banda & another v Van der Spuy & another
(781/2011) [2013] ZASCA 23 (22 March 2013)

Media Statement

A thatch roof which leaked prior to the sale of a house and which continued to leak
after the sale, was held to be a latent defect which had not been properly repaired by
the sellers. The sellers had fraudulently concealed the existence of this defect which
vitiated the effect of a voetstoots clause in the agreement of sale. In addition, it was
held that the sellers had made a fraudulent misrepresentation as to the existence of a
guarantee in respect of the repairs to the roof, which induced the purchasers to buy
the house, or agree upon the price. The fraud of the sellers was held to be causally
related to the damage suffered by the purchasers, despite the fact that the guarantee
did not cover all of the defects which caused the roof to leak and the sellers were
unaware of an additional cause of the leak. The purchasers were entitled to recover
the cost of replacing the roof, either on the basis of a reduction of the purchase price
in this amount, or on the basis of this being the damages suffered by the purchasers
as a consequence of the seller’s fraud. The decision of the South Gauteng High
Court that the sellers were not liable for the damages suffered was accordingly
reversed.

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