Claims against estate agents for latent defects discovered after the purchase of immovable property are frequently pursued without a full appreciation of the legal requirements that must be satisfied for success.
One requirement in particular is often overlooked: the estate agent’s duty of disclosure extends only to material facts within their personal knowledge, and there is no general duty to conduct technical investigations to uncover hidden structural defects. The recent High Court judgment in Fitzpatrick v Latsky N.O. and Others provides important guidance on the boundaries of estate agent liability and the requirements for defeating a voetstoots clause through proof of fraud.
This article explores the facts of the case, the relevant legal framework, and the court’s conclusions.
Facts of the case
The case concerns the sale of a residential property at Marina Da Gama in Cape Town. On 8 October 2013, the first defendant, Sean Adriaan Latsky, an estate agent employed by the third defendant, Zadok Properties CC, appraised the property on behalf of the second defendant, Robert Southern, the seller. The property was subsequently marketed to the plaintiffs, the Fitzpatricks.
During the marketing process, Latsky allegedly represented to the plaintiffs that the property was in "stunning" or "beautiful" condition and that no remedial work would be required. The plaintiffs purchased the property for R1,550,000 and took occupation on 31 January 2014.
Approximately seven months later, on 18 August 2014, a wooden deck at the property collapsed. Expert evidence subsequently revealed that the decks had been constructed without approved building plans and were not compliant with National Building Regulations standards.
The plaintiffs instituted action against the estate agent, the estate agency, and the seller, advancing eight claims in the alternative. These included claims for misrepresentation against the estate agent, claims under various provisions of the Consumer Protection Act 68 of 2008 (CPA), a claim for fraudulent non-disclosure against the seller, and a claim based on the actio quanti minoris (an action for a reduction of the purchase price).
At the close of the plaintiffs’ case, the defendants applied for absolution from the instance.
Sandra Sithole, Rethabile Shabalala and Kimara Rampersad 28 May 2025 Legal framework
The legal framework governing claims against estate agents and sellers for latent defects is well established but demanding. The court outlined several key principles.
First, in respect of estate agents, the court confirmed that the duty of disclosure under the Estate Agency Affairs Act 112 of 1976 (EAAA), which was the applicable legislation at the time of the 2013 transaction, extended only to material facts within the agent’s personal knowledge. (The EAAA has since been repealed and replaced by the Property Practitioners Act 22 of 2019, which came into operation on 1 February 2022.)
The court held that there was no general duty on an estate agent to conduct technical investigations to uncover latent structural defects absent special circumstances. This is a significant limitation:
An estate agent is not required to possess or apply engineering or building expertise when marketing a property.
Second, the court addressed the distinction between actionable misrepresentation and mere puffery. The court found that Latsky’s description of the property as being in "stunning" or "beautiful" condition constituted puffery - that is, aesthetic commendation reflecting the evident renovations to the property - rather than an assertion of structural integrity or compliance with building regulations. Such general commendatory statements do not give rise to liability for misrepresentation.
Third, in respect of claims against the seller, the court restated the requirements for defeating a voetstoots clause. Relying on established authority, the court held that to succeed in such a claim, a purchaser must prove two elements: first, that the seller knew of the latent defect; and second, that the seller deliberately concealed the defect with the intention to defraud (dolo malo). The court emphasised that fraud is not lightly inferred and that the purchaser bears the onus of proving both elements.
Fourth, concerning the CPA claims, the court held that Section 61 of the CPA imposes strict liability for harm caused by defective goods but targets producers, importers, distributors, and retailers of goods. The estate agent did not "supply" the immovable property within the meaning of Section 61.
Furthermore, Section 113 of the CPA, which imposes joint and several liability on a principal for the conduct of an agent, is derivative in nature and requires proof of a primary CPA contravention by the agent.
The court also confirmed that the seller, as a once-off private seller not acting in the ordinary course of business, fell outside the CPA's definition of "supplier" under Section 5(2)(b) and was accordingly excluded from the CPA regime.
Court’s analysis
The court, per Andrews AJ, applied the test for absolution from the instance as established in Claude Neon Lights (SA) Ltd v Daniel and Gordon Lloyd Page & Associates v Rivera: whether there is evidence upon which a court, applying its mind reasonably, could or might (not should or ought to) find for the plaintiff.
Regarding the claims against the estate agent, the court found that the plaintiffs had failed to establish an actionable misrepresentation. The expert witnesses conceded that a layperson would not have been able to detect the latent defects in the deck construction. In the absence of special circumstances triggering a duty to investigate, Latsky could not be held liable for failing to discover defects that were not within his personal knowledge.
Regarding the claims against the seller, the court found that there was no evidence that Southern had actual knowledge of the latent defects. Critically, both plaintiffs conceded during their testimony that they believed Southern was a "decent, honest person" and that he did not know of the defects.
Fitzpatrick went so far as to state that he considered it "wrong to attack" the Southerns and that his real intention was to "teach Mr Latsky a lesson" and establish a precedent regarding estate agents’ duties.
Documentary evidence from City of Cape Town records dating from 1978 indicated plan compliance, which would have led any lay owner to believe the structures were lawfully constructed. The court also rejected the contention that "quick-fix" repairs undertaken by the seller established knowledge of structural defects, holding that such repairs may constitute ordinary maintenance rather than acknowledgment of fundamental structural problems.
The court accordingly granted absolution from the instance in favour of all defendants in respect of all claims. The plaintiffs were ordered to pay the defendants’ costs on Scale B, jointly and severally.
Conclusion
The Fitzpatrick v Latsky N.O. case serves as an important reminder of the stringent requirements that must be met in claims against estate agents and sellers for latent defects in immovable property.
In respect of estate agents, the judgment confirms that the duty of disclosure is limited to material facts within the agent’s personal knowledge and that there is no general duty to conduct technical investigations to uncover latent defects. General commendatory statements describing a property as being in "stunning" or "beautiful" condition constitute puffery and do not amount to actionable misrepresentations concerning structural integrity or regulatory compliance.
In respect of sellers, the judgment emphasises that proof of actual knowledge and deliberate concealment with fraudulent intent is required to defeat a voetstoots clause; fraud will not lightly be inferred from circumstantial evidence such as minor repairs.
For legal practitioners advising potential claimants, the decision underscores the critical importance of assessing at an early stage whether evidence of knowledge and fraudulent intent can realistically be established against either the estate agent or the seller.
The decision ultimately reflects the law’s attempt to balance protection for purchasers against hidden defects with recognition that not every latent defect gives rise to a claim, particularly where neither the seller nor the estate agent possessed knowledge of the problem.
