The Consumer Protection Act 68 of 2008 (CPA) has significantly curtailed the use of voetstoots clauses in South African law. While these clauses are still recognised in certain contexts, the CPA strengthens consumer rights and places strict limits on when and how liability for defective goods can be excluded.

What the Law Says 
Under South African common law, a voetstoots clause allows goods to be sold “as is”, excluding liability for hidden defects unless the seller knowingly conceals them. This placed the risk largely on the buyer and was generally used in property sales, but the Consumer Protection Act 68 of 2008 (CPA) has significantly changed this position where it applies. 

When Does a Voetstoots Clause Still Apply?
The CPA limits the use of voetstoots clauses in transactions where a business supplies goods or services to a consumer in the ordinary course of trade. A “consumer” is broadly defined to include individuals as well as smaller juristic entities below the prescribed asset or turnover threshold. The Act does not apply to private, once-off sales between individuals or to certain large juristic persons. In these cases, the common-law voetstoots principle may still apply with full effect. 

The CPA’s Implied Warranty of Quality
Where the CPA does apply, section 55 introduces an implied warranty of quality. This means that consumers have the right to receive goods that are reasonably suitable for their intended purpose, of good quality, in good working order, and free of any defects. This protection extends to both latent and patent defects, marking a significant departure from common law, where buyers typically bore the risk of defects that were visible upon reasonable inspection.

Six Months to Return Defective Goods
Section 56 reinforces this protection by granting consumers a six-month period within which they may return defective goods and choose between repair, replacement, or refund. This remedy applies automatically and does not depend on proving fault or breach in the traditional sense. It effectively overrides contractual provisions that attempt to exclude or limit liability for defective goods, including voetstoots clauses.

Voetstoots Does Not Mean No Liability
The CPA does not entirely abolish the possibility of limiting liability, but it imposes strict conditions for doing so. Section 55(6) permits a supplier to sell goods in a specific condition, provided that the consumer has been expressly informed of the particular defects and has expressly agreed to accept the goods in that condition. This requires full and transparent disclosure of defects, and a general voetstoots clause will not suffice. The supplier bears the burden of proving that the consumer was adequately informed and that genuine consent was obtained.

In addition, section 48 prohibits unfair, unreasonable, or unjust contract terms. A blanket voetstoots clause that attempts to exclude all liability, without proper disclosure or negotiation, is likely to be regarded as unfair and therefore unenforceable. The Regulations to the CPA further identify certain types of clauses that are presumed to be unfair, including those that limit the supplier’s liability in a manner that defeats the purpose of the Act.

To rely on any limitation of liability under the CPA, a supplier must ensure:
• Full and transparent disclosure of specific defects 
• Clear and informed consent from the consumer 
• Fair and reasonable contractual terms

CPA vs Voetstoots: Where Each Applies
It is also important to distinguish between situations where the CPA applies automatically and where it does not. For example, a property developer or estate agent selling property in the ordinary course of business would fall within the ambit of the CPA, meaning that reliance on a voetstoots clause would be severely restricted. By contrast, a once-off private sale of property between individuals, where neither party is acting in the ordinary course of business, would generally fall outside the CPA, allowing the voetstoots clause to operate subject to the common-law rules regarding fraudulent non-disclosure.

The Practical Shift in Risk

The practical effect of the CPA is a clear shift in risk from the consumer to the supplier in most commercial transactions. Suppliers can no longer rely on general exclusionary clauses to avoid liability and must instead ensure proper disclosure and fair dealing. Consumers, in turn, benefit from enhanced protection and clear statutory remedies that simplify the process of redress.

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