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ARTICLE · 14 NOVEMBER 2019

Force Majeure In Instances Of Drought

Cliffe Dekker Hofmeyr
Cliffe Dekker Hofmeyr
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Cliffe Dekker Hofmeyr

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This is an attempt by parties to cater to instances where the breach of a contract. i.e. non-performance, is caused by circumstances beyond the control of the parties.

South AfricaLitigation, Mediation & Arbitration
Mongezi Mpahlwa
Mongezi Mpahlwa
Denise Durand
Denise Durand

If provision is not made in a force majeure clause for specific circumstances that will prevent performance by a party, the parties will have to rely on the common law principle of supervening impossibility.

The common law position as seen in Unibank Savings & Loans Ltd (formerly Community Bank) v Absa Bank Ltd 2000 (4) SA 191 (W) 198 B-E is that if performance of a contract is impossible due to unforeseen events (not caused by the parties), parties are excused from performing in terms of the contract. It was further held that, "the impossibility must be absolute or objective as opposed to relative or subjective". Furthermore, the parties must not have had reasonable foresight of the event causing impossibility at the time the contract was concluded - Nuclear Fuels Corporation of SA (Pty) Ltd v Orda AG 1996 (4) SA 1190 (A)

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