Van Wyk Van Heerden Attorneys

Force Majeure is defined generally as any event or condition, not existing at the date of signature of a contract, not reasonably foreseeable as of such date and not reasonably within the control of either party, which prevents, in whole or in significant part, the performance by one of the parties of its contractual obligations, or which renders the performance of such obligations so difficult or costly as to make such performance commercially not viable. 

In terms of South African Common Law, any such occurrence beyond the control of parties, which renders the performance of their contractual obligations impossible, which occurrence came about only after the conclusion of the contract, triggers the principle of supervening impossibility.  Usually, if such an occurrence arises, without any act, omission or fault of either of the parties to the contract, and such occurrence renders the performance of any contractual obligation impossible, a party to the contract is excused from his duty to perform.  Should a party wish to rely on the principle of supervening impossibility, such party bears the onus to show that the performance is objectively impossible and not just economically difficult or burdensome.  In most jurisdictions, Force Majeure events must present the following criteria:

  • The event must arise without any act, omission or fault of any party, thus external to the contract and the parties thereto;
  • The event must render the parties’ performance radically different from what the parties originally contemplated;
  • The event must have been unforeseeable at the time of conclusion of the agreement; and
  • The event must be beyond the control of the party seeking to invoke the Force Majeure as a defence for its non-performance. 

Some agreements contain a Force Majeure clause, which clause usually sets out the following principles:

  • What would constitute a Force Majeure and providing a list of such events;
  • A catch-all phrase on what may constitute a Force Majeure event;
  • Providing both parties an opportunity to terminate the agreement upon a specific time and/or occurrence of event. 

If an agreement indeed contains such a Force Majeure clause, the parties to the agreement are bound to the specific provisions of the contract.  If the agreement does not contain a Force Majeure clause, the parties should resolve to the Common Law principle of supervening impossibility as referred to above.

In an English Judgment of Hackney Borough Council v Dore, the Judge held that:

“The expression means some physical or material restraint and does not include a reasonable fear or apprehension of such a restraint”.

This implies that a party who was committed to pay for a venue or entered into a Rental Agreement may still be liable for the rental and/or venue hire fees in circumstances where the occurrence only creates a reasonable fear or apprehension of a restraint.

In the case of the Covid-19 occurrence, the Tenant will still bear the onus of demonstrating that the risk of the impossibility to perform was not foreseeable and that the Tenant could not have taken any steps and/or implement any action to mitigate its circumstances which rendered the Tenant’s performance impossible.  It is, therefore, not sufficient to indicate that the Covid-19 has merely rendered it financially difficult to perform, i.e. to pay its rental.

We foresee that the Covid-19 event could shape the law in ways which we currently cannot clearly predict.  We, therefore, advise that reasonableness and due care should rather be the driving forces to navigate contractual parties through these uncertain times.  Although President Cyril Ramaphosa declared a National State of Disaster on 26 March 2020, which has imposed various restrictions on businesses, a complete lock-down in South Africa has not been imposed to date hereof.  The question, therefore, is not whether a tenant has undisturbed and full enjoyment of the leased premises during the lock-down period, but rather whether its performance has become impossible under the circumstances.  For as long as alternatives exists, for instance alternative finance, reserve funds and/or other arrangements, it is our submission that the Force Majeure principle cannot be relied upon by a tenant to abate liability towards rental payable. 

It is however worth noting that the Corona virus itself does not have to be the Force Majeure event.  The Corona virus can cause, for example harbour shutdowns, delays in delivery of goods and/or services or any other event. These shutdowns, delays or lock-downs may effect a party’s ability to perform its contractual obligations and each case will have to be dealt with on its own merits. 

In conclusion we therefore note that tenants who seeks rent deferral or reduction should not accept that Landlords are compelled to accommodate their requests.  Tenants, should therefore, rather explain to their Landlords what measure they have taken to address their difficulties and obstructions before they entitle themselves to such deferral or reduction.  Good legal advice can assist the parties by helping them individually to understand the contract and the legal interpretation of such contract, alternatively the application of the Common Law principles referred to above.

Article by  Willem Van Heerden

Director – Dispute Resolution

Business Rescue Practitioner

Mediator

Van Wyk Van Heerden Attorneys Inc

1 April 2020

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Alicia obtained her LLB degree cum laude from the North-West University, Potchefstroom, in 2020. She commenced her articles during 2020 at Van Velden-Duffey Inc, situated in Rustenburg, where she acted as a candidate attorney in the civil litigation department.

Alicia was admitted as an Attorney of the High Court during early 2023, and currently practices as such in the litigation department of Van Wyk Van Heerden.

Maryna obtained her LLB Degree at the North West University, Potchefstroom. Originally from Clanwilliam, she went to school in Paarl at Paarl Gymnasium and returned to embark on her professional career at our firm. She joined our team in 2021 as an article clerk and was admitted as an Attorney during 2023. Maryna is currently appointed in our Estates Department in the Wellington Office.

Milton is a well organised Attorney passionate about offering multidisciplinary legal service, focusing on the best interest of his clients. He aims to provide impetus to the vision of creating new momentum in transforming the legal system. He values cost effective solutions on various matters of law, persist on a flexible approach and strive to allocate the necessary resources to satisfy his clients' needs.


Milton obtained his LLB degree in 2020 from the University of the North West. He was admitted as an attorney of the High Court of South Africa on 3 March 2023. He specializes in Civil and Commercial Litigation, Alternative Dispute Resolution, Mediation, Contracts, Sports Law, Construction Disputes and Insolvency.

Anika obtained her LLB in 2020 from the University of Stellenbosch. She completed her articles at Van Wyk Van Heerden in 2022 and was admitted as an Attorney of the High Court at the beginning of 2023.

She currently practices in the Conveyancing Department where she assists estate agencies and developers, as well as marketing of the firm.

Gawie obtained his BComm and LLB Degrees at the University of Stellenbosch during 2009 and 2011 respectively. He completed his Master of Laws during 2017 in the Law of Trusts and completed a Post Graduate Diploma in Financial Planning during 2019.

He joined the team at Becker Bergh & More Inc. for his articles in Upington during 2013 and worked at the firm for 9 years attending to litigation, conveyancing and commercial matters. He was admitted as Attorney and Notary Public during 2015 and as a Conveyancer during 2016.

Gawie was appointed in the Conveyancing and Commercial Departments of Van Wyk Van Heerden during 2022 in the Wellington Office, providing clients with expert advice on the structuring of transactions, the registration of Trusts as well as general Conveyancing.

Liesl graduated from the University of Stellenbosch with an LLB degree in 2005.  During University she developed a special interest in and passion for Family Law.  Due to the fact that Liesl specialised during her articles, she completed the Practical Legal Training Course presented by UNISA, in conjunction with her articles, which she commenced with Miller du Toit Cloete Inc in 2006.  She was admitted as an attorney of the Western Cape High Court, with Right of Appearance in 2007.

Liesl co-presented a paper titled “African Charter on the Rights of Children” at the London Metropolitan University Summer School in 2011 and received her Certificate of Completion in this regard.

Liesl commenced her articles at Miller du Toit Cloete Inc, under the guidance of Zenobia du Toit, in 2006 and went on to practise as a Senior Associate there for nearly 14 years. After moving to Paarl, she practised as a director of Family Law at Clark Cupido Attorneys.

Liesl joined Van Wyk Van Heerden Attorneys in April 2022, as head of their Family Law department.  She has practised exclusively in Family law and ancillary matters for 16 years.

Roeline specialises in Estate Administration. Roeline obtained her B.Com Law, LLB and LLM (Estate Law) degrees at North-West University in 2006, 2008 and 2010, respectively.
After she completed her articles in 2010, she joined a financial institution as an estate administrator.

She joined the team in 2022 and attends to all Estate matters.

Aleisha grew up in Durban and relocated to the Western Cape to attend the University of Stellenbosch where she completed a Bachelor of Arts Degree in Social Dynamics from 2011-2013. Thereafter she obtained her LLB degree through the University of the Free State with distinction from 2014-2017. She joined Van Wyk Van Heerden in 2018 as candidate attorney and gained experience in various fields of the law, with a special interest in Property Law and the Administration of Deceased Estates. After qualifying as an Attorney and Conveyancer during March 2020 Aleisha joined the team assisting in the Conveyancing and Estates Departments of the firm.

Gaynor obtained her LLB degree in 2012 from the University of Stellenbosch. She then completed her articles at a law firm in the North West Province where she gained experience in General Litigation, Family Law and Debt Collection. In 2016 she moved back to the Western Cape and finally joined the firm in November 2018 where she currently heads up the Debt Recovery Department.

Antionette obtained her LLB degree, with distinction, in 2015 at the North-West University of Potchefstroom.

She completed her articles at Van Wyk van Heerden Attorneys in 2017, and currently practices as an attorney in the litigation department. She completed her conveyancing examination in 2018 and will be admitted as a conveyancer in 2019. Antionette handles a wide range of litigation matters, including company, property, estate, family and insolvency law.

Leonette completed her studies at the University of Pretoria and obtained her LLB degree in 2009. She practised in Rustenburg for 8 years and specialised in debt Recovery, debt review and related matters.

Leonette joined the firm in 2017 and manages all correspondent work.

Carla grew up in the Free State and decided to relocate to the Cape Winelands to study law at Stellenbosch University. She obtained her LLB degree in 2002 and furthered her studies at the University of Cape Town’s School for Legal Practice where she received the Dean’s award for the best student in Business Management and Administration.

She joined the litigation department at Van der Spuy & Partners as a candidate attorney where-after she decided to pursue a career in property and commercial law, specializing in sectional title schemes, security estates and developments, servitudes, subdivisions and consolidations as well as commercial contracting.

Carla heads up the Conveyancing Department of the firm and mainly assists estate agencies and developers and is actively involved in the marketing of the company.

Charl obtained his law degree at the North West University in 2008. And finalised his articles at Van Velden & Duffey Attorneys where after he practised at the same firm and became a director in 2014.

Charl was recruited by Van Wyk Van Heerden in 2017 to strengthen and assist our growing litigation department. He handles a wide range of litigation matters including company, family, insolvency, banking and delictual law.

"Quick, practical and commercial resolution is first priority"

Willem van Heerden is a Director at Van Wyk Van Heerden in the dispute resolution, litigation and mediation department. He specialises in contractual disputes, company law, shareholder issues, evictions, family law, banking law and insolvency law. He provides sound strategic advice and direction on all commercial and company issues.

He is an accredited commercial mediator as well as a business rescue practitioner.

He has encouraged the appropriate use of mediation in the resolution of all disputes.

He has acted for various international and cross border trade, transport, agricultural and construction companies. Willem has acted for major banks, insurance houses, leading retailers, property groups as well as high network of entrepreneurs and individuals. He serves as a trustee on a number of trusts.

Willem has written various articles and is a co-author of a published legal book on farm evictions.

Qualifications

  • BCom (Northwest University)
  • LLB (Northwest University)
  • Postgraduate Diploma (VRIJE University Amstelveen )
  • Admitted as an Attorney of the High Court of South Africa
  • Accredited Business Rescue Practitioner (University of South Africa)
  • Accredited Commercial Mediator

Nazlee Abrahams grew up in Paarl and obtained the degrees B.Sc. and LLB from the University of Stellenbosch in 1992 and 1997 respectively.

She commenced with her articles at Van Wyk Fouchee in 1998 and was admitted as an Attorney with right of appearance in the High Court in 2000 after which she consequently became a Director at the firm.

In October of 2002 she was admitted as Conveyancer and also Notary Public in 2006. She currently manages Bonds registrations in the Conveyancing Department and further specialises in family & marriage law, drafting of wills, administration of estates and all notarial work.

Nazlee makes a valuable contribution in pro-bono work when the opportunity arises and invests a considerable amount of time in community service. She also serves as the current Chairperson of the governing body of William Lloyd Primary.

Anville specialises in Property Law, General Commercial Law, Estate and Tax Planning, Administration of Deceased Estates and Trust Law. Through the years, he contributed to the community life in Paarl. He was a founding member of the Drakenstein Rotary Club in Paarl, founding member of the Paarl Attorneys Association, served as Captain, President and Chairman of the board of the Paarl Golf Club and has played a major role in establishing the Boschenmeer Golf and Country Estate.

Anville obtained his BA LLB degree at the University of Stellenbosch in 1974. He served his articles with Silberbauers Attorneys in Cape Town and joined Solomon Miller, Hymie Maisel and Willem Gaum in Paarl in May 1977.

He is an experienced and seasoned attorney who commenced his career in litigation and migrated into Commercial, Trust and Tax work. He obtained his post graduate diploma in Tax Law at the University of Cape Town, with distinction, in 1993.

Anville celebrated his 40th year in practice in 2017.