The President of the Republic of South Africa, Cyril Ramaphosa, declared the outbreak of the COVID-19 coronavirus a national disaster, invoking the Disaster Management Act[1].
[2]An assessment was done regarding the COVID-19 epidemic, and drastic steps were needed. Schools, in particular, had been identified as one of the biggest threats in terms of transmission of the COVID-19 epidemic. On or about 15 March 2020, it was announced that all schools be closed until 14 April 2020 or further notice.
Consumer’s rattled and worried about what will be happening to their children, were left with more questions than answers. One of these questions was, “are we still obliged to pay school fees even though we have to now make alternative arrangements for our children which can bare additional financial implications”?
A further major concern is what are the damages caused by cancellations & closures and the resulting inability by suppliers to perform services.
[3]The legal concept of ‘force majeure’, refers to the concept of supervening impossibility of performance. Supervening impossibility of performance refers to the situation where performance was possible at the conclusion of the contract but subsequently becomes objectively and permanently impossible through no fault of the parties.
[4]The impossibility must be beyond the control of the parties and must be caused by vis major or casus fortuitus. The common-law provision of Vis Major is a legal term used to describe a “superior force or chance occurrence”, and casus fortuitus is a fortuitous or unavoidable accident which no ordinary care or oversight could prevent. These provisions include any happening, whether due to natural causes or human agency, that is unforeseeable with reasonable foresight and unavoidable with reasonable care.
The outbreak of the COVID-19 coronavirus falls in the above category and consequently, the principle of supervening impossibility of performance would justify non-performance of a party’s obligations under a contract where such non-performance has been caused by the virus itself, or a practical component (for example, closure of industries, quarantines).
In the absence of a specific force majeure clause in a contract, the common law principle of supervening impossibility of performance would prevail, in which case suppliers will be discharged from liability for non-performance and payment of damages, potentially including refunds.
Looking at the declaration on the closure of all schools, in particular, it should be noted that a school’s main function is to provide education in accordance with the prescribed curriculum and the applicable administrative directives and as otherwise provided. In light of this, the President also declared that mid-year school holidays will be shortened.
How does the closure of schools affect crèches and nursery-schools, that do not fall under the ambit of the [5]South African Schools Act? These constitute childcare facilities which are registered with the Department of Social Development. These childcare facilities should treat the situation equally as serious and act in the best interests of the children.
Due to all businesses which are closed, consumers may feel that wasted fees should be limited to the supplier’s reasonable expenses to stay operational under their ongoing/fixed-term agreements, in light of the consumer’s expenses to make alternative arrangements. Suppliers should take everything into consideration and act reasonably towards consumers.
Should a consumer, however, wish to cancel a fixed-term agreement, Section 14 of the
[6]Consumer Protection Act will still have to be adhered to. Referring to the Consumer Protection Act and fixed-term agreements, it is clear that in terms of section 14, the consumer should afford the supplier twenty (20) business days’ notice in writing or in other recorded manner or form. It should be noted that a supplier may impose a reasonable cancellation fee considering all surrounding circumstances.
[7]There is, however, a slight relief for parents who are not sure how to keep their children constructively busy during the lockdown period. The department of basic education has made available on their website, online resources for parents, caregivers and learners to support learning at home.
ABOUT THE AUTHOR
Damian
Bothma is a legal advisor at SEESA, advising businesses on the Consumer
Protection and Protection of Personal Information Acts. He obtained his LLB
degree in 2016. He is currently busy studying towards obtaining his CIPM
through the International Association of Privacy Professionals. Furthermore, he
is studying towards obtaining his BSC Informatics degree.
[1] Disaster Management Act, 57 of 2002
[2] https://www.education.gov.za
[3] SEESA (Pty) Ltd Internal Opinion – Jan Oosthuizen 16 March 2020
[4] Shepstone & Wylie Attorneys, Coronavirus: A South African Perspective
[5] South African Schools Act, 84 of 1996
[6] Consumer Protection Act 68 of 2008
[7] https://www.education.gov.za