The Gortzens (appellants) had jointly acquired and owned the property at issue during their marriage. Their relationship subsequently soured, and Mr Gortzen moved out of the property. The appellants later agreed to sell the property as part and parcel of their divorce settlement. Ms Gortzen remained in occupation and retained Limbika Coatings and Painters to undertake superficial repairs of the property, primarily by patching and refilling cracks and marks in the paint, and re-painting. Ms Moolman purchased the property and the sale agreement included a voetstoots clause. It also contained a defects disclosure form, which stated “the seller further confirms . . . that there are no latent defects in any of the following items unless likewise disclosed by placing a cross in the relevant blocks”. None of the items in the disclosure list was checked, including the listed item “dampness in walls/ floors.”
Ms Moolman obtained the keys to her new property and in planning for renovations to the property, she discovered damp, triggering the present proceedings. The Roodepoort Magistrates Court upheld her claim in respect of damp (but not the swimming pool or the fixtures) and directed the appellants to pay the respondents R244,855 plus interest, as well as the costs of suit.
It was agreed between the experts as to the extent of the damp. This damp qualified as a defect because it affected the use and value of the property. The court a quo found, on a balance of probabilities, that Ms Gortzen had known of the damp and had designedly concealed it during the sale. While fraud is not lightly imputed, it may nevertheless be inferred when such inference is supported by the objective facts revealed by the evidence. The cost of “beautifying” the property came to R41,747.09. Limbika’s work was, of itself, relatively extensive. Receipts indicated that one drum of paint and 24 kgs of Polyfilla were purchased for Limibika’s repairs. Mr Gortzen failed to disclose the damp issues in the disclosure form, or raise their existence with the estate agent. The court is satisfied that this is sufficient to establish dolo malo on his part, since where a seller recklessly tells a half-truth or knows the facts, but does not reveal them because he or she has not bothered to consider their significance, this may also amount to fraud. The appeal is dismissed with costs.
See case attached and read same in toto.
Allen West
Tonkin Clacey Pretoria
Property Law Consultant
+27 (0)12 346 1278
allen@tcpta.co.za
www.tcpta.co.za
