COVID-19 and Load Shedding Showed SA Businesses the Hard Way Why Force Majeure Clauses Matter
Before 2020, few South African businesses paid much attention to force majeure clauses. Then COVID-19 lockdowns shut down entire industries overnight. Businesses that couldn't operate demanded relief from their contracts. Some had well-drafted force majeure clauses that protected them. Many didn't.
More recently, severe load shedding stages (reaching Stage 6 in 2023) disrupted business operations across the country, raising fresh questions about whether power failures constitute force majeure.
What Is Force Majeure Under SA Law?
Important: South African law does not have a general statutory doctrine of force majeure. Unlike French law (where the concept originates), force majeure in SA is purely a contractual matter. If your contract doesn't include a force majeure clause, you generally cannot claim force majeure relief.
SA common law does recognise related concepts:
- Supervening impossibility of performance — if performance becomes objectively impossible (not merely more difficult or expensive), the contract may be discharged
- Vis maior (superior force) — recognised in Roman-Dutch law as an event beyond human control
But these doctrines are narrow. Performance must be genuinely impossible — not just harder, less profitable, or more expensive. Economic hardship alone is not enough.
What Should a Force Majeure Clause Include?
1. Definition of Force Majeure Events
Best practice: A combination of specific listed events plus a general catch-all.
Specific events to list:
- Natural disasters (earthquakes, floods, fires)
- Pandemics and epidemics
- Government actions (lockdowns, sanctions, embargoes, changes in law)
- War, terrorism, civil unrest
- Labour strikes and industrial action (if beyond the party's control)
- Utility failures (electricity, water, telecommunications)
- Supply chain disruptions
Catch-all: "Any other event beyond the reasonable control of the affected party that could not have been reasonably foreseen or prevented."
Why both: Specific events provide certainty. The catch-all covers unforeseen scenarios. Without the catch-all, novel events like COVID-19 might not be covered.
2. Notice Requirements
What to include: The affected party must notify the other party within a specified period (typically 7-14 days) of becoming aware of the force majeure event, including:
- The nature of the event
- The expected duration
- The steps being taken to mitigate the impact
3. Obligation to Mitigate
What to include: The affected party must take all reasonable steps to minimise the impact of the force majeure event and resume performance as soon as possible.
Why it matters: Force majeure relief is not a free pass to stop performing. A party that doesn't attempt to mitigate cannot claim full force majeure relief.
4. Consequences of Force Majeure
Options to include:
- Suspension: Performance obligations are suspended for the duration of the event
- Extension of time: Deadlines are extended by the period of the force majeure
- Termination right: If the force majeure continues beyond a specified period (typically 30-90 days), either party may terminate the contract without liability
- Financial relief: Rental abatement, reduced fees, or shared losses during the force majeure period
5. Duration Cap
What to include: A maximum period for which force majeure relief applies. If the event continues beyond this period (e.g., 6 months), either party should have the right to terminate.
Why: Without a cap, a contract could be suspended indefinitely — leaving both parties in limbo.
Load Shedding as Force Majeure
The question: Does load shedding qualify as force majeure in South African contracts?
The answer depends on your clause:
- If "utility failures" or "power outages" are listed as force majeure events, then yes
- If the clause uses a general catch-all, the argument is available but not certain
- If the clause doesn't cover utility failures, you likely cannot claim force majeure for load shedding
Important nuance: Courts may find that load shedding in South Africa was foreseeable (it has been occurring since 2007) and therefore parties should have planned for it. This could weaken a force majeure claim, particularly for businesses that took no mitigation steps (like installing generators or UPS systems).
Best practice going forward: Expressly list "scheduled or unscheduled interruptions to electricity supply" as a force majeure event, and include provisions for rental abatement or performance suspension during extended outages.
COVID-19 Lessons for SA Contracts
The pandemic revealed several weaknesses in typical SA force majeure clauses:
1. Many clauses didn't list pandemics — older contracts that listed specific events without a catch-all didn't cover COVID-19
2. Government lockdowns weren't covered — even clauses listing "government action" sometimes didn't clearly extend to lockdown regulations
3. Partial performance wasn't addressed — many businesses could partially perform but not fully. Most force majeure clauses only addressed total inability to perform
4. Financial hardship wasn't covered — businesses that could technically perform but faced economic hardship (reduced demand, supply chain cost increases) found that force majeure didn't help them
Key Takeaway
Every contract should include a well-drafted force majeure clause that specifically addresses South African realities — including pandemics, load shedding, and government regulatory changes. A generic international template may not protect you under SA law.
Use ContractGuard to check whether your contracts include proper force majeure protection and whether the clause actually covers the events most likely to affect your business.