Maher v Avianto (Pty) Ltd (A2023/097547) [2024] ZAGPJHC 1163; [2025] 1 All SA 410 (GJ) (12 November 2024)

Maher v Avianto (Pty) Ltd (A2023/097547) [2024] ZAGPJHC 1163; [2025] 1 All SA 410 (GJ) (12 November 2024)

The court found that the Covid-19 lockdown, imposed by government regulations, constituted a supervening impossibility that extinguished the contract. The force majeure clause in the contract did not expressly cover government action, and thus the common law doctrine of impossibility applied. Since the respondent could not provide the venue on the agreed date and retained the full contract price, this amounted to unjustified enrichment. The respondent's offer of a voucher did not constitute restitution of the payment. The appellant was entitled to a full refund, and public policy considerations reinforced that retention of the payment was not justified. The appeal was upheld, and the...

Citation
[2024] ZAGPJHC 1163
Parties
Appellant: Roxanne Maher; Respondent: Avianto Pty Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
12 November 2024
Case Number
A2023/097547
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court, Mogale City
Outcome
Appeal upheld. Magistrate's order set aside. Full refund granted to appellant.
Judges
WJ du Plessis, L Windell
Legal Topics
Force Majeure, Supervening Impossibility, Unjustified Enrichment, Contract Cancellation, Covid19 Regulations
Commercial and Corporate Civil Procedure Force Majeure Supervening Impossibility Unjustified Enrichment Contract Cancellation Covid19 Regulations

Case Brief

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Parties

Roxanne Maher

Appellant

Avianto Pty Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court, Mogale City

Legal Issues

  1. 1 Whether the Covid-19 lockdown constituted a force majeure event under the contract.
  2. 2 Whether the contract was extinguished by supervening impossibility due to government regulations.
  3. 3 Whether the respondent was entitled to retain the full contract price after impossibility of performance.

Ratio Decidendi

The court found that the Covid-19 lockdown, imposed by government regulations, constituted a supervening impossibility that extinguished the contract. The force majeure clause in the contract did not expressly cover government action, and thus the common law doctrine of impossibility applied. Since the respondent could not provide the venue on the agreed date and retained the full contract price, this amounted to unjustified enrichment. The respondent's offer of a voucher did not constitute restitution of the payment. The appellant was entitled to a full refund, and public policy considerations reinforced that retention of the payment was not justified. The appeal was upheld, and the...

Court Disposition

Appeal upheld. Magistrate's order set aside. Full refund granted to appellant.

Orders

  • The appeal is upheld, with costs on scale B.
  • The agreement is confirmed to have been extinguished as a result of supervening impossibility.