The term force majeure can be directly translated to “superior forces”. It is an expression used to describe a wide range of events such as an act of God or public enemy, fire, an explosion, earthquake, flood, storm or other adverse weather condition. It also applies to war, civil commotion, sabotage, riot, strikes, lock-outs or other labour disputes, embargo, sanctions, epidemics, act of any government or other authority, compliance with law, limitations imposed by exchange control or any other circumstances of the like or different nature beyond the reasonable control of a person.
In South Africa, force majeure is only contractually observed – i.e. if there is an express force majeure clause or a reference thereto in a written contract. South Africa’s position differs to that of many other jurisdictions where force majeure applies regardless.
Where a party to a contract governed in terms of South African law is prevented from performing its obligations in terms thereof due to an unexpected event beyond its control (a force majeure event), it will not be excused for its delay in performing (or in extreme cases, its failure to perform) its liabilities and/or obligations under the said contract. In such a case where there is an absence of a force majeure clause, the “non-performing” party will have to claim that the contract has become impossible to perform and rely on the doctrine known in South African law as the doctrine of supervening impossibility. The “non-performing” party will have to prove to the other party that a supervening event beyond its control renders the contract no longer performable and hence cannot merely rely on a contractual provision agreed to between the parties. The general rule with supervening impossibility is that the contract is suspended until the impossibility dissipates or if the supervening event is prolonged for an unreasonably long period of time, the other party may cancel.
Although supervening impossibility provides a defence in the absence of a force majeure provision, parties to contracts are encouraged to negotiate force majeure clauses into their contracts. This will safeguard the process to be followed when dealing with a situation where one of them cannot perform its part in terms of a contract due to an unexpected event beyond its control. It will also create a sense of direction for the parties and avoid unnecessary disputes.