- Wasserman says common property descriptions are not legally enforceable guarantees.
- The court grants absolution after the plaintiffs fail to establish a prima facie case.
- A decade-long dispute over a deck collapse ends with no liability.
When an estate agent describes a property as “stunning”, “beautiful”, or “in excellent condition”, they are not making a legal promise about its structural integrity, safety, or regulatory compliance. A recent ruling by the High Court in the Western Cape has made that distinction very clear.
Johlene Wasserman, Director of Community Schemes and Compliance at VDM Incorporated, says the case began when buyers purchased a waterfront residential property in October 2013, only for a wooden deck to collapse less than a year later, in August 2014.
What followed was a legal battle stretching over more than a decade. The trial took nine separate court days spread across multiple years, before judgment was finally handed down on 25 February 2026.
At the close of the plaintiffs’ own case, the court granted absolution from the instance. In other words, it assessed the evidence in the best possible light for the plaintiffs and still found no reasonable basis on which a court could rule in their favour.
Marketing language and what the court made of it
For Wasserman, the ruling touches on several important areas. “It provides clear guidance on the legal meaning of marketing language, the scope of an estate agent’s duty, the strength of voetstoots clauses, and the limits of the Consumer Protection Act in private property transactions,” she says.
Central to the ruling is the concept of sales puffery, a long-standing legal principle that Wasserman says is often misunderstood.
“Sales puffery refers to enthusiastic, promotional language that expresses opinion rather than fact,” she explains. “The court confirmed that this principle is alive and well.”
In practical terms, this means that no matter how glowing a property listing may be, those descriptions cannot be treated as guarantees of structural condition, safety, or compliance with building regulations.
The estate agent’s duty and where it ends
The buyers attempted to hold the estate agent, his company, and the seller liable for the collapse, arguing that they had misrepresented the property’s condition and failed to disclose known defects.
The court disagreed, finding that no factual representations had been made about the structural condition of the decks, the absence of latent defects, or compliance with building plans.
Wasserman is clear on where the line falls. “Estate agents are required to disclose material facts within their personal knowledge, but they are not expected to conduct engineering inspections or uncover hidden structural defects unless special circumstances exist,” she says.
Expert evidence presented at trial confirmed that the defects were latent, hidden beneath the surface and not detectable by a layperson. On that basis, the court found no reason to conclude that the estate agent knew about them or could reasonably have uncovered them.
Wasserman also points to a tactical decision that backfired on the plaintiffs. They chose to call the estate agent as their own witness. “Calling your opponent as a witness means that a party is generally bound by that person’s evidence,” she explains.
The estate agent maintained throughout that he had no knowledge of the structural defects. The court accepted his evidence, which proved fatal to the plaintiffs’ case.
The voetstoots clause holds and the CPA offers no rescue
The property had been sold subject to a voetstoots clause, a common feature in South African property transactions that sells the property as-is. To overcome it, the plaintiffs needed to show that the seller had known about the defect and deliberately concealed it with the intent to defraud. “The court found no evidence of either,” says Wasserman.
In fact, the plaintiffs themselves conceded that the seller had been honest and was likely unaware of the defect, an admission that left the voetstoots clause fully intact.
The Consumer Protection Act offered no relief either. The court dismissed all CPA claims, finding that no misleading or deceptive marketing had been established. The seller, as a once-off private individual, fell outside the Act’s scope.
Strict liability under section 61 did not apply, section 52 relief requires a proven contravention, and the derivative nature of Section 113 vicarious liability meant it could not arise in the circumstances.
The plaintiffs sought the full cost of replacing the decks, but the court clarified that this was the wrong measure. Under the actio quanti minoris, the legal remedy for reducing the purchase price due to a defect, the correct calculation is the reasonable cost to cure the defect, not the cost of replacement or any form of upgrading. Wasserman notes that this misstep in quantifying damages was yet another reason the claim could not succeed.
Despite the claim being of a size that would ordinarily fall within the Magistrates’ Court’s jurisdiction, the High Court awarded costs on Scale B, a higher cost scale, citing the complexity of the matter, the number of claims, and the volume of expert evidence that had been placed before it.
All claims were dismissed at the absolution stage, meaning the defendants never even had to put up their own case.
12 years, nine court days, and a lesson in disclosure
For Wasserman, the sheer timeline of the case says everything. A property bought in 2013, a deck that collapsed in 2014, and a judgment that only arrived in 2026, more than 12 years later.
“The extended duration of the litigation highlights the high financial, emotional, and professional cost of property disputes, even where claims ultimately fail,” she says.
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