As a general rule, a party is excused from rendering contractual performance if it becomes physically or legally impossible for such party to perform. But a defence of impossibility of performance will not succeed if, when the impossibility intervened, the performance was overdue. In such a case, the rule is that lateness perpetuates the obligation, and the debtor bears the risk of impossibility unless they can show that the impossibility would have come about even if they had rendered performance timeously.

In order to prevent and combat the spread of the COVID-19, the South African government has implemented a nationwide lockdown. The parties to a contract may be prevented from rendering their respective contractual obligations, and as such, may seek to raise the defence of impossibility of performance or ‘force majeure’ in order to avoid liability. The circumstances under which this defence may be raised have been extensively discussed.

The curious case of Tweedie v Park Travel Agency (Pty) Ltd t/a Park Tours 1998 (4) SA 802 (W) illustrates the principle. In this case, the plaintiffs entered into an agreement with the defendant, a travel agency, in terms of which the defendant arranged for the plaintiffs to travel to England as part of a tour to see a test match between the Springboks and England. The defendant undertook to provide the plaintiffs with their rugby tickets when they arrived at the Johannesburg (now OR Tambo) International Airport. Upon arrival at the airport, the plaintiffs enquired where their rugby tickets were, and they were informed that the tickets would be given to them when they arrived at a hotel in London, where they were due to spend the night before the match. On arrival at the hotel, the plaintiffs again requested the tickets and they were informed that the tickets would be handed over when they boarded the bus to go to the rugby ground. The bus arrived and the tickets were not in the bus, and the defendant undertook to provide them at a pub (the White Swan), where the plaintiffs and other members of the tour group were due to have lunch before the match. When the plaintiffs arrived at the White Swan they were informed by director of the defendant (one Meyer) that the tickets were not available. By then it was after 12h00 and the match was due to start at 13h00. At this point, irate members of the tour group took Meyer’s cellphone and wallet and confined him to one of the bars, with two of them standing guard to prevent him from leaving until the tickets were produced.

The defendant was ultimately unable produce the tickets, and the plaintiffs had to watch the Springboks victory on television. On return to South Africa, the plaintiffs sued for repayment of the tour price and expenses that they had incurred. The defendant contended that the conduct of the irate members of the tour group at the White Swan made it impossible for it to perform, and it was accordingly released from its duty to perform. The court rejected the defendant’s argument.

The court held that after repeated demands, the defendant ultimately undertook to deliver the tickets at the White Swan. When Meyer did not do so, the defendant’s obligation became overdue and the consequence was that the ‘obligation was perpetuated’. The result of this, the court stated, was that any subsequent supervening impossibility would not release the defendant from its duty to perform. Therefore, although the conduct of irate members of the tour group made it impossible for the defendant to perform, the defendant was, as a result of plaintiffs’ earlier demands, already late in performing, and consequently, it could not rely on the alleged impossibility to avoid liability.

It is clear that a party who, at the time the lockdown took effect, was already late in performance, may be liable for damages for breach of contract.

A debtor is late in performance if they fail to render the contractual performance within the agreed time. If no time for performance is agreed upon, the debtor is not automatically late if they fail to perform. It is once the creditor has demanded performance within a specified time, reasonable in the circumstances, and the debtor has failed to perform within that time, that they are regarded as being late.