In our first COVID-19 Alert, we informed our readers of the concepts of force majeure and supervening impossibility as possible excuses for non-performance of contractual obligations. Since the announcement of the nationwide lockdown on 23 March 2020, we have been inundated with enquiries as to whether the current lockdown constitutes a force majeure or vis major (supervening impossibility) event; and specifically whether a party is excused from performing its contractual obligations during the state of disaster.

The simple answer to the question is that it depends on various factors. Each enquiry is dependent on the circumstances and the specific facts of the case and should be considered on its own merits. There is simply no "one size fits all" formula to determine whether non-performance of contractual obligations is excused.

Our readers are cautioned to seek legal advice before invoking force majeure or supervening impossibility as a defence for non-performance of contractual obligations. An incorrect application of these defences could lead to a repudiation of the agreement, which could result in a claim for damages.

PSN has done extensive research on this subject and has put a team together who can assist you with any enquiries you may have in this regard. For more information, please contact Lourens Swart on 083 627 6674 (Email: lswart@psn.co.za) or Nico Herbst on 083 630 5937 (Email: nherbst@psn.co.za).