Force Majeure Clauses in South Africa: What They Mean and When They Apply

When COVID-19 disrupted supply chains and shut down businesses in 2020, force majeure clauses became front-page news. Parties across South Africa — and the world — scrambled to invoke them. Many were surprised to find that the clause they thought would protect them either did not apply, or did not do what they expected.

Force majeure is one of the most misunderstood provisions in commercial contracts. This guide explains what it means, how South African courts interpret it, and what you need to know before relying on it — or drafting it into your next agreement.

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What Is Force Majeure?

Force majeure (French for "superior force") is a contractual clause that excuses one or both parties from performing their obligations when an extraordinary event beyond their control makes performance impossible, impractical, or illegal.

Common events listed in force majeure clauses include:

• Natural disasters (floods, earthquakes, fires)
• War, civil unrest, or terrorism
• Government actions (sanctions, embargoes, regulatory changes)
• Pandemics or public health emergencies
• Strikes or industrial action (sometimes)
• Infrastructure failures (power outages, internet disruption)

The key word is extraordinary. Ordinary commercial difficulties — a supplier increasing prices, a project running over budget, a market downturn — are not force majeure events. They are business risks that the parties are expected to manage.

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Force Majeure vs Vis Maior: The South African Position

South African common law does not use the term "force majeure." The equivalent common law doctrine is vis maior (Latin for "greater force") — also sometimes called casus fortuitus (unforeseen accident).

Under the common law doctrine of vis maior, a party is excused from performance if:

1. Performance has become objectively impossible (not merely more difficult or expensive)
2. The impossibility was caused by an event that was unforeseeable at the time of contracting
3. The event was beyond the party's control and could not have been prevented by reasonable precautions
4. The party did not assume the risk of that event under the contract

The critical distinction is between impossibility and impracticability. South African common law requires true impossibility — the fact that performance has become more expensive, inconvenient, or commercially unattractive does not excuse non-performance under the common law doctrine.

How contractual force majeure clauses differ

A contractual force majeure clause can expand on the common law position. Parties can agree that performance is excused not only when it is impossible, but also when it is impractical, commercially unreasonable, or prevented by a defined category of events — even if strict impossibility has not been reached.

This is why the drafting of force majeure clauses matters enormously. A poorly drafted clause may offer less protection than the common law; a well-drafted clause can provide broader relief.

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How South African Courts Interpret Force Majeure Clauses

South African courts interpret force majeure clauses strictly. The party seeking to rely on the clause bears the burden of proving that:

1. The event falls within the definition of force majeure in the clause
2. The event actually caused the non-performance (causation)
3. The party took reasonable steps to mitigate the impact of the event
4. The party gave notice as required by the clause (if a notice requirement exists)

The causation requirement

Courts look carefully at whether the force majeure event actually caused the non-performance, or whether the party would have been unable to perform regardless. If a supplier was already in financial difficulty before the force majeure event, they cannot rely on the event to excuse non-performance that would have occurred anyway.

The foreseeability requirement

If the event was foreseeable at the time of contracting, a court may find that the party assumed the risk of that event by entering into the contract without adequate protection. For example, a party contracting during a known period of civil unrest may struggle to argue that subsequent unrest was unforeseeable.

The mitigation requirement

Force majeure does not excuse a party from taking reasonable steps to mitigate the impact of the event. If alternative performance was possible — using a different supplier, a different route, a different method — the party may be required to pursue those alternatives before invoking force majeure.

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What Force Majeure Does (and Does Not) Do

What it typically does:

• Suspends the obligation to perform for the duration of the force majeure event
• Excuses liability for damages arising from non-performance during that period
• In some clauses, entitles either party to terminate the contract if the event continues beyond a specified period

What it typically does not do:

• Excuse obligations that arose before the force majeure event (e.g. payment already due)
• Apply to events that were foreseeable or within the party's control
• Excuse performance that is merely more expensive or inconvenient
• Apply automatically — most clauses require notice to be given within a specified period

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Common Drafting Issues

Vague definitions

A clause that simply refers to "acts of God, natural disasters, and other events beyond the parties' control" without further definition creates significant uncertainty. Courts will interpret ambiguous clauses against the party seeking to rely on them.

No notice requirement

Many force majeure clauses require the affected party to give notice within a specified period (e.g. 5 or 10 business days of the event occurring). Failure to give notice on time can result in the party losing the right to invoke the clause, even if the event itself would otherwise qualify.

No termination right

A force majeure clause that only suspends performance without providing a termination right can leave parties in limbo indefinitely. A well-drafted clause should specify what happens if the event continues beyond a defined period — typically, either party should have the right to terminate.

Excluding strikes

Whether industrial action constitutes a force majeure event is frequently contested. Employers often argue that a strike is foreseeable and within the control of the business; employees and unions argue the opposite. If this is a relevant risk, the clause should address it explicitly.

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Practical Guidance

If you are reviewing a contract before signing:

• Check whether the force majeure clause covers the events most likely to affect your ability to perform
• Ensure the definition is broad enough to include regulatory changes, government actions, and supply chain disruptions — not just natural disasters
• Check the notice requirements and ensure you can comply with them in practice
• Consider whether the clause should include a termination right if the event continues beyond a defined period

If you are seeking to invoke force majeure:

• Review the clause carefully — does the event fall within the defined categories?
• Document the event and its impact on your ability to perform
• Give notice as required by the clause, within the specified timeframe
• Take all reasonable steps to mitigate and document those steps
• Do not assume the clause applies — get a professional assessment before communicating to the other party

If the other party is invoking force majeure against you:

• Check whether the event actually falls within the clause
• Assess whether the event truly caused the non-performance, or whether the party was already in difficulty
• Check whether the notice requirements were complied with
• Consider whether the party took reasonable steps to mitigate

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Summary

Force majeure clauses excuse non-performance when extraordinary events beyond a party's control make performance impossible or impractical. South African common law requires true impossibility under the doctrine of vis maior; a contractual force majeure clause can expand this to cover impracticability or defined categories of events. Courts interpret these clauses strictly — the party invoking the clause must prove causation, foreseeability, mitigation, and compliance with notice requirements.

If you are negotiating a commercial contract and want to ensure your force majeure clause provides adequate protection, or if you are in a dispute about whether a force majeure clause applies, ClauseWise can assist at a fixed price.

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ClauseWise provides legal support and commercial advisory services. This article is for general information only and does not constitute legal advice. For advice specific to your circumstances, please consult an admitted attorney.