A wedding venue in Wellington has to pay back a R50 000 deposit it refused to refund to a client who could not get married in May 2020 due to Covid lockdown restrictions.
AHMR Hospitality (Pty) Ltd, trading as Bakenhof Winelands Venue at the time, which appealed a summary judgment against it in the Wellington Magistrate’s Court, argued that the deposit paid by Genevieve da Silva became non-refundable after 14 days.
The venue relied on a clause in its contract that it argued excluded Da Silva’s entitlement to a refund, but Western Cape High Court Judge Deidre Kusevitsky this week found that the contract was impossible due to the conditions prevalent at the time.
“The material terms of the agreement were inter alia that Da Silva would hire the venue from Bakenhof Winelands for her wedding on May 2, 2020 and to reserve the date, Da Silva was required to pay a deposit of R50 000.
“As we know, the Covid-19 pandemic struck and during March 2020, the government declared an alert level 5 lockdown, which meant that inter alia, all forms of social gatherings were prohibited,” the judgment read.
In light of the exceptional circumstances, Da Silva then contacted the venue informing it that the wedding could no longer go ahead.
In an email, Da Silva wrote: “Unfortunately we do not think it will be possible to go ahead with our wedding, as the majority of our guests are from outside Cape Town and the prospect of travel does not look promising. We are looking at a very small church ceremony only (and we are not sure when this would happen). Because of this we want to cancel our booking.”
As a gesture of goodwill, Da Silva requested the venue to provide her with a schedule of costs already incurred and to refund the balance of the deposit.
This was not provided and neither was the refund done.
In her judgment, Judge Kusevitsky said: “Without making a pronouncement, it seems as if the venue opportunistically held on to Da Silva’s money when given the prevailing conditions at the time, it was not entitled to.
“Their actions were not only contra bonos mores, but performance of the contract was impossible due to the conditions prevalent at the time – and it would have been immoral for the venue to have held Da Silva ransom and to dictate when they could get married, as a means or entitlement for them to have retained the deposit.
“(She) was willing to pay for administrative expenses that the venue incurred. This was reasonable conduct.
She sought a list of the expenses that justified the venue’s alleged entitlement of the deposit. They failed to provide this. Instead, they relied upon Clause 2.1 which provided for a deposit being non-refundable in circumstances, which public policy dictates would not have been bona fide.”
As I have stated, the operation of pacta sunt servanda would have been applicable had the restrictions of the the Covid pandemic and the attendant lockdown restrictions not been in place. Fairness and morality dictates that the retention of the deposit was not bona fide,” said Kusevitsky.
Hans Roosenschoon for AHMR Hospitality said: “AHMR Hospitality respects the judgment of this court, and will not appeal this decision to an higher court.”
Bakenhof Winelands Venue said: "Thank you for reaching out but Bakenhof Winelands Venue has no involvement in this matter. AHMR Hospitality is a separate entity and was only our venue tenant at the time, therefore the matter is strictly between AHMR hospitality and their client."
Cape Times