This blog was co-authored by Justine Subramoney, Candidate Attorney.

In November 2024, the High Court held that the implementation of the Covid-19 regulations extinguished the contractual obligations between the parties to a wedding venue contract because of supervening impossibility arising from the pandemic. The venue was ordered to refund the claimant R63 008 plus interest, the sum paid to secure the booking of a wedding on 28 March 2020.

The contract stated that postponement of the wedding would amount to cancellation. Further, cancellation for any reason not attributable to the default of the claimant would result in a full refund. The refund would only be made once a date has been rebooked for another function. All changes and cancellations were to be made in writing. A further force majeure clause provided that the venue was not financially, legally or otherwise responsible for cancellation of a function if the event could not proceed because of an act of God or sabotage.

It was not disputed that the contract was validly concluded, nor that performance was possible at conclusion of the contract. The date of the wedding was specified as a contractual term. The high court considered the date a material term and evaluated the impact of all other clauses against the agreed date.

The claimant sought damages for breach of contract and unjustified enrichment. The claimant argued that the national lockdown was a force majeure event that made performance impossible. The venue had acknowledged at the time that the wedding could not proceed due to the lockdown and offered a postponement, without penalty, or a voucher for future use if a new date could not be agreed on by the parties. The claimant refused the offer and requested a full refund. The couple married in an office in front of five people.

No obligation arises where performance is objectively impossible. It follows that anything given in fulfilment of a non-existent obligation must be returned. If not returned, a legally enforceable claim for unjustified enrichment arises. To succeed with a claim for unjustified enrichment, a claimant is required to allege and prove receipt of money or goods by a third party, in the absence of valid reason or cause, and that the third party was enriched at the expense of the impoverished claimant.

In this instance, money was paid in exchange for a venue. The court held that the lockdown made the performance of the contract impossible. The impossibility of performance extinguished the parties’ contractual obligations, and the contract was nullified from the moment it became clear that the wedding could not take place. Consequently, the venue’s retention of payment made by the claimant constituted unjustified enrichment. The court held that there was no valid reason for the venue to receive or retain the claimant’s money.

The defence that attempts were made to rearrange the wedding date and that a voucher was offered for the same price for any other event to be held by the claimant, constituted an attempt to renegotiate the contact. The claimant could not be held to the unilaterally renegotiated contract and the offering of the voucher did not fulfil the venue’s performance obligation.

This case underscores the significant impact of the Covid-19 pandemic on contractual obligations, particularly where parties could not legally perform their contractual obligations owing to the regulations imposed by the State.

Maher v Avianto (Pty) Ltd (A2023/097547) [2024] ZAGPJHC 1163 (12 November 2024).