The bank contends that it is discharged from its contractual obligations to the respondent by reason of a supervening impossibility otherwise known as a vis maior or casus fortuitus, namely the RBZ directive. In support of its stance it relies on the judgments in Peters, Flamman & Co v Kokstad Municipality 1919 AD 427 and Bob’s Shoe Centre v Henneways Freight Services (Pty) Ltd 1995 (2) SA 421 (A). The brief facts of the Peters, Flamman, case as summarised in The Law of Contract in South Africa 3 ed by RH Christie at pp 524-525, are that the appellant firm was contracted to light the streets of Kokstad for a period of years. During the currency of the contract, in wartime, the partners were interned as enemy aliens and their business wound up under the relevant war legislation. The Municipality’s claim for damages for breach of contract and forfeiture of the firm’s plant under a clause of the contract was rejected by the Appellate Division. At pp 434-5 of the judgment of the court, SOLOMON ACJ remarked as follows: “… Nor is it necessary to consider generally what are the circumstances in which it can be said that a contract has become impossible of performance. For the authorities are clear that if a person is prevented from performing his contract by vis maior or casus fortuitus, under which would be included such an Act of State as we are concerned with in this appeal, he is discharged from liability.” In the Bob’s Shoe Centre case (supra) the appellants were contracted to clear and deliver a consignment of shoes to the respondents factory in the city. A fire consumed the warehouse where the shoes were warehoused. The shoes were destroyed and it became impossible to complete performance of the contract. Clearly the facts of both these cases are distinguishable from those in casu. The appellant herein has not shown that for some reason beyond its control, it cannot, from its resources, repay the debt. It has not proved impossibility. It goes without saying that in
conduct their business for the purposes of these regulations; (3) Orders made under subs (1) shall not have effect until they have been approved by the Minister and published in the Gazette.” At the hearing of the appeal, Mr De Bourbon conceded that the RBZ directive was ultra vires of the provisions of s 35(1) of the Regulations. Paragraph (c), it will be seen, deals with the offer of foreign currency in their possession for sale to the RBZ. He submitted, however, that the defence of supervening impossibility was available to the bank even where the directive was unlawful. I disagree. In The Law of Contract by R H Christie, cited above, the following observation is made by the author: “The limits of vis maior and casus fortuitous have not been authoritatively defined for the purposes of this branch of the law, but it is clear from Peters, Flamman, where the internment and winding- up were carried out under statutory authority, that any similar act of state would qualify. Legislation subsequent to the making of the contract, making performance illegal either absolutely or without a specified consent which has been refused, will also qualify, as will refusal of a statutory consent, but not obedience to a ministerial directive given without statutory authority. For the purposes of this branch of the law there is no necessity to distinguish between vis maior and casus fortuitus, which between them include any happening, whether due to natural causes or human agency, that is unforeseeable with reasonable foresight and unavoidable with reasonable care.” (The emphasis is mine.) And on p 528 “self created impossibility, that is, impossibility resulting from the act of one of the parties, does not discharge the contract but leaves the party whose act created the impossibility liable for the consequences. This will be so whether the impossibility is complete or partial, and whether or not the act that causes the impossibility is wrongful.”