It is irrefutable that Covid-19 has brought the entire world to its knees - economically, socially, politically, and even religiously. In the legal context, South African President Cyril Ramaphosa “... appeal[ed] to all large businesses not to resort to force majeure and stop paying their suppliers and rental commitments…”.

The President, therefore, asked large businesses not to rely on force majeure clauses. This means, simply put, relying on 'the impossibility of performing' to either end or suspend a contractual obligation to perform.

The lawyer in me understands what Covid-19 means legally speaking. However, being more than a lawyer, the ethical scholar wants to pose the following question: Ought the (positive) law be disregarded in favour of, or changed to accommodate, the needs of human beings, especially in circumstances as current?

The President's statement was made because the law allows one to ‘escape’ the obligation to perform, even when you can perform, in circumstances where the other party cannot, which would normally be the position when one's obligation is payment. Is this an example where the law provides for a legal rule, but not necessarily a just rule? Something to think about, I hope...

An ethical understanding of the entire situation would enjoin acknowledgement and recognition of the being of a human as a human (which starts with one's existence in a relationship with others - ie an existential relationship) before recognising contractual obligations (ie a legal relationship).

While appreciating that everyone is affected by Covid-19, not everyone is affected equally (in the same manner or extent). It is this inequality (of impact) that the law does not take into account, which the President, by making his statement, acknowledged and confirmed, whether intentionally or not.

The final question that remains is: What does this mean or entail? I shall not pretend to understand everyone's unique circumstances, which means that there is no simple answer (or then solution).

I shall only note that when one has regard for the being of a human as a human, one would hope that regard is had, first, for basic sustenance (of the other) and, only thereafter, notions of increased profits and positive growth safeguarded by time immemorial maxims such as force majeure and vis major.

Thus, instead of ending contractual relationships that affect human relationships far more severely, perhaps we ought to, where sensible, sustain contractual relationships (through temporary compromise, for example) only to proceed where we left things before the pandemic. If we decide to do so, we would, in turn, sustain ourselves, which includes the self and the other.

Turning back to the lawyer in me, businesses and legal practitioners must come together and develop innovative methods of implementing negotiated legal structures within, and mechanisms through, which all the parties involved are positioned towards, and ultimately succeeds in, flourishing in a world after Covid-19.

To join Africa Legal's mailing list please click here