This article is a general overview and should not be used or relied on as legal advice. No liability will
be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any
information herein. Consultation with an Attorney on your specific scenario and circumstances is
essential. Errors and omissions excepted (E&OE)
Colloquially referred to as “act of GOD” force majeure renders performance of a contractual obligation impossible. The clause can be utilised at common law or if specified in contract.
Some of the conditions that have been recorded through South African case law are:
1. The impossibility must be impossible when considered objectively
2. The impossibility must be absolute opposed to probable, or relatively impossible
3. The impossibility must be unavoidable by a reasonable person
4. It must not be the fault of either party
5. The mere fact that a disaster or event was foreseeable, does not necessarily mean that it ought to have been foreseeable or that it is avoidable by a reasonable person.
6. Each case and specific circumstances must be tested against the general rule
At face value it appears that a number of the requirements will be met in the current
lock down scenario.
Parties struggling to meet their contractual obligations during this period are strongly advised to seek legal opinion on applicability of force majeure to their specific contact.
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