Force Majeure, Impossibility and Prescription

The announcement of a state of disaster as envisaged in the Disaster Management Act introduces many issues regarding vis major and prescription. This raises the question as to whether the state of disaster suspends proceedings and/or prescription of a claim. I accordingly deal with the conditions that the court addressed in the case of Glencore Grain Africa (Pty) Ltd v Du Plessis NO & others [2007] JOL 21043 (O) in which it ruled that there are certain conditions that must be fulfilled before impossibility or a force majeure may be relied on successfully.

The following requirements were stated:

- The impossibility must be objectively impossible, and not as a result of the subjective act of the party relying on the impossibility.

- It must be absolutely impossible and not just improbable.

- It must be absolute and not attributable to the fault of either party.

I am only dealing briefly with those requirements in as far as it relates to the current state of emergency.

Since the Coronavirus/COVID-19 has been declared an international pandemic which necessitated the state to declare a state of disaster, in general, most parties relying on impossibility can hardly be blamed for being unable to perform. Let's take the following example: You enrolled for a fitness course at a gymnasium and is rendered unable to attend and the gymnasium is unable to provide you with the agreed service due to the state of disaster. Unless otherwise agreed to, the common law will be applied and release both parties from their mutual obligations in terms of the agreement, which will indemnify the parties against any claims against each other arising from the impossibility.

How does this apply to claims which are required to be instituted within certain periods of time?

Section 13 of the Prescription Act 68 of 1969 states as follows:

"13. Completion of prescription delayed in certain circumstances.

(a) the creditor is a minor or is insane or is a person under curatorship or is prevented by superior force including any law or any order of court from interrupting the running of prescription as contemplated in section 15 (1), or

(b) the debtor is outside the Republic, or

[Para. (b) substituted by s. 11 (a) of Act 139 of 1992.]

(c) the creditor and debtor are married to each other, or

(d) the creditor and debtor are partners and the debt is a debt which arose out of the partnership relationship, or

(e) the creditor is a juristic person and the debtor is a member of the governing body of such juristic person; or (f) the debt is the object of a dispute subjected to arbitration, or

(g) the debt is the object of a claim filed against the estate of a debtor who is deceased or against the insolvent estate of the debtor or against a company in liquidation or against an applicant under the Agricultural Credit Act, 1966, or

[Para. (g) substituted by s. 11 (b) of Act 139 of 1992.]

(h) the creditor or the debtor is deceased and an executor of the estate in question has not yet been appointed, and

(i) the relevant period of prescription would, but for the provisions of this subsection, be completed before or on, or within one year after, the day on which the relevant impediment referred to in paragraph (a), (b), (c), (d), (e), (f), (g) or (h) has ceased to exist, the period of prescription shall not be completed before a year has elapsed after the day referred to in paragraph (i).

(2) A debt which arises from a contract and which would, but for the provisions of this subsection, become prescribed before a reciprocal debt which arises from the same contract becomes prescribed, shall not become prescribed before the reciprocal debt becomes prescribed."

The reference to " prevention of superior force including any law" is your guideline here. I am of the opinion that both the state of disaster due to an international pandemic, the declaration of a state of emergency, and the regulations published in terms thereof, accordingly suspends prescription. I see no reason why the same argument should not be applied to pleadings and notices in court actions, as the state of disaster should supersede any other law by virtue of its authority granted to the President in the Disaster Management Act, read with the Prescription Act. This article should not be construed as a comprehensive legal opinion, and briefly deals with the general principles of Force Majeure/Vis Major, impossibility and prescription. Every case should however be dealt with on its own merit, and having due consideration of the facts and any contractual terms.

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