Where a seller had fraudulently failed to disclose a defective roof and sewerage system covered by buildings constructed without required statutory approval he was successfully sued in delict for fraudulent misrepresentation and fraudulent nondisclosure.
Because the conduct was fraudulent the delictual claim defeated the voetstoots clause in the deed of sale as well as the clause that no representations had been made to the purchaser.
In the case of Rossouw v Hanekom, the court accepted the evidence of the buyer that the problems had not been disclosed to her.
The seller had acknowledged in evidence that he was obliged personally or through his estate agent to convey the full facts in respect of the leaking roof to the buyer. He also accepted he was obliged to disclose the absence of statutory approval for the alterations and the fact that the sewerage system had been covered by a building illegal erected.
In all the circumstances the most probable inference was that the misrepresentation and non-disclosures were made deliberately in order to induce the sale.
This constituted fraud and judgment was given for the buyer.