In a recent address to the nation on the Covid-19 crisis, President Cyril Ramaphosa appealed to large companies not to invoke “force majeure” as a basis not to pay suppliers and landlords. Despite this, the media has reported on numerous instances of large retailers such as TFG, Pepkor, Pick n Pay and Dis-Chem refusing to pay all or some of their rentals for April due to the trading restrictions imposed by the lockdown.

In each instance the retailers have variously claimed the lockdown to be an instance of a “force majeure” event or as giving rise to a “supervening impossibility of performance”. Landlords, in turn, have maintained that tenants must comply with their lease agreements and are not excused from paying rental...

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