A collapsed wooden deck, a renovated waterfront home, and more than a decade of legal proceedings have culminated in an important High Court judgment that brings long‑awaited clarity to estate agents, sellers, buyers, and the broader property market.
In Fitzpatrick v Latsky N.O. and Others (Case No. 13451/2017), the Western Cape Division of the High Court has ruled in favour of an estate agent, his company, and the seller of a residential property, after finding that the plaintiffs failed to establish a prima facie case for any of their claims.
“The ruling 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 (CPA) in private property transactions,” says Johlene Wasserman, Director of Community Schemes and Compliance at law firm VDM Incorporated.
A dispute that spanned more than a decade
For Wasserman, the timeframe of the case itself is also striking: The property was purchased in October 2013. The deck collapse occurred in August 2014. The judgment was only delivered on 25 February 2026 – more than twelve years after the sale, and more than eleven years after the alleged defect manifested. And the trial occupied the High Court for nine separate days, spread across multiple years before judgment was handed down.
The extended duration of the litigation underscores the high financial, emotional, and professional cost of property disputes, even where claims ultimately fail at the prima facie stage, Wasserman says.
The Court’s starting point: “Absolution from the instance”
The matter was decided on an application for absolution from the instance at the close of the plaintiffs’ case, she continues. “This procedural step is significant: the court was required to consider the evidence at its highest and determine whether there was any basis on which a court could reasonably find for the plaintiffs. The court held that it could not.”
“Stunning” is not a legal promise
A central issue was whether describing a property as “stunning” or “beautiful” during marketing could amount to a legally actionable misrepresentation, she says further. “The court confirmed a long‑standing principle of law known as sales puffery. Sales puffery refers to enthusiastic, promotional language expressing opinion rather than fact. In property transactions, words such as ‘stunning’, ‘beautiful’ and even ‘in excellent condition’ are not guarantees of structural integrity, safety, or regulatory compliance.”
Accordingly, the court found that the estate agent made no representations of fact about the structural condition of the decks, the absence of latent defects, or compliance with building plans.
Estate agents are not structural engineers
For Wasserman, the judgment provides important clarification on the scope of an estate agent’s duty of disclosure, particularly under the law applicable at the time of the sale.
“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. Expert evidence showed that the defects were latent and not detectable by a layperson. As a result, the agent could not be held liable for failing to identify or disclose them.”
Calling your opponent as a witness has consequences
Another unusual element of the case for Wasserman involved the plaintiffs calling the estate agent as their own witness. “Calling your opponent as a witness means that a party is generally bound by their witness’s evidence. The judgment specifically noted that while the plaintiffs called Mr. Latsky as their witness, his testimony actually undermined their own case. He credibly maintained that he had no knowledge of the structural defects and he was believed.”
Voetstoots clauses remain a powerful shield
The property, says Wasserman, was sold subject to a voetstoots clause. To defeat the clause, a purchaser has to prove:
- Actual knowledge of the defect by the seller; and
- Deliberate concealment with intent to defraud.
“The court found no evidence of either. Even the plaintiffs conceded that the seller was honest and likely unaware of the defect.”
Consumer Protection Act (CPA) claims failed
The court dismissed all CPA claims, finding that:
- No misleading or deceptive marketing was established;
- The seller was a once‑off private seller outside the CPA’s scope;
- Strict liability under section 61 did not apply;
- Section 52 relief requires a proven CPA contravention; and
- Section 113 vicarious liability is derivative and could not arise.
Replacement is not the measure of damages
While the plaintiffs claimed the cost of replacing the decks, the court clarified that under the actio quanti minoris, the correct measure is the reasonable cost to cure, not replacement or upgrading, Wasserman points out. “This failure of quantification was fatal to their damages claim.”
Costs and final outcome
Despite the claim falling within Magistrates’ Court jurisdiction, Wasserman says the High Court awarded Scale B costs, citing the complexity of the case, the number of claims, and extensive expert evidence.
Why this judgment matters
“Beyond the legal principles it clarifies, the case serves as a powerful reminder of how long, complex, and costly property litigation can become – even where claims ultimately fail. For estate agents, sellers, and buyers alike, the judgment reinforces a simple message: clear disclosure, disciplined compliance, and careful documentation remain the most effective way to avoid disputes that can last more than a decade,” she says.
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