Holiday plans: what if you book and have to self-isolate or quarantine?

Many consumers have lost money over the past few months because their holiday trips were cancelled and accommodation establishments could not pay their deposits and even full payments back.

The Consumer Protection Act

The Consumer Protection Act (CPA) protects your right to cancel advance reservations, bookings or orders in section 17. According to this section, a supplier who commits to or accepts a reservation to supply goods or services on a later date can require that you pay a reasonable deposit in advance and impose a reasonable charge for cancellation.

However, the supplier is not allowed to charge you a cancellation fee if you are unable to honour the booking, reservation or order because you die or are admitted to hospital. This is where the question arises: is self-isolation or self-quarantine due to Covid-19 exposure or infection considered as “admitted to hospital” even if you stay at home?

Force majeure

Many companies will consider self-quarantine or self-isolation a “force majeure”, that refers to any event the supplier could not, even with all due care, foresee or avoid. This can include war or threat of war, riots, civil disobedience, terrorist activity or actual threatened terrorist activity, industrial disputes, natural or nuclear disasters, adverse weather conditions, fire, and epidemics such as SARS and Covid-19.

Cancellation terms and conditions

Looking at the cancellation terms and conditions and fees on the websites of hotel groups and resorts, it is clear that this question has not received serious consideration yet:

• Lekkeslaap guarantees full payback if the regulations change and you are unable to travel, but does not indicate what happens if you have to self-quarantine or self-isolate. Consumers are requested to only cancel between two weeks and one day before in case lockdown levels change.
• Marriott International Hotels says if you made reservations on or after 6 July 2020 for arrival dates up to 30 December 2020, reservations can be changed or cancelled at no charge up to 24 hours before the scheduled arrival date. If you book for arrival dates on or after 31 December 2020, individual hotel cancellation policies will apply.
• Thompson’s Holidays says under the heading “Force Majeure”, it cannot accept liability or pay any compensation where it is prevented from performing its contractual obligations as a result of “force majeure”, except otherwise expressly stated in the booking conditions.
• Anytime Holidays says its cancellation policy was adapted due to the coronavirus and may be withdrawn or altered at any time subject to further developments. All new bookings for occupation up until the end of November may be cancelled until 7 days from occupation.
• Gourikwa Reserve charges a cancellation fee of 100% if you cancel in the two weeks before you arrive, but refunds and a waiver of cancellation policies are at the discretion of management and the ability to re-let the cottages. A 15% administration fee will be charged.
• Pennington Beach Resort says refunds will only be done if you have a valid reason, but not closer than 3 months before your arrival date.
• Rhino Walking Safaris charges 100% cancellation fee if you cancel during the week before you arrive.
• Bateleur Main Camp will charge 100% of the total amount if you cancel within 13 days before your arrival date.
• The Blue Marine in Gordon’s Bay offers no refund if you cancel less than 30 days before arrival.
• Ocean View Luxury Apartments offers no refund if you cancel in the week before you arrive.

Expert advice

Trudie Broekmann, a consumer law expert from Cape Town, says the common law rules, which explain how we treat a contract when it becomes impossible for one of the parties to perform their contractual obligations, will ensure a fair outcome for consumers who have to cancel their holiday bookings when they have to self-isolate or self-quarantine.

“In the case of quarantine, the consumer is prevented from enjoying the holiday due to government regulations requiring isolation. In such a case, the supplier is excused from having to perform his obligations in terms of the contract and the consumer is excused from paying for the services.

“Since you are prevented from making use of the holiday by a cause beyond your control (the regulations are a ‘force majeure’ event), the supplier is not entitled to charge damages for any losses suffered,” she says.

However, the supplier can contract out of these common law rules by imposing a cancellation fee, but the cancellation fee must comply with the CPA’s requirement that the fee must be fair, reasonable and just toward the consumer.

“In most cases, imposing a cancellation fee in the case of self-isolation will not be fair, reasonable or just and therefore suppliers are prohibited from charging such fees.”

Broekmann says a consumer cannot rely on a self-created impossibility to avoid paying for the holiday.

“If you take unreasonable risks such as failing to wear a mask in public, attending crowded events and failing to avoid contact with people who could be infected with Covid-19, you cannot escape the cancellation fee or any of the supplier’s terms regarding forfeiting the deposit.”

Article 17 also specifies that a cancellation fee is unreasonable if it exceeds a fair amount in the circumstances regarding the nature of the goods or services, the length of notice of cancellation, the reasonable potential for the service provider, acting diligently, to find another booking between the time of receiving the cancellation notice and the time of the cancelled reservation and the general practice of the relevant industry.

In this case, Broekmann points out that the amount of the cancellation fee is relevant in evaluating its fairness.

“If the consumer loses a 50% deposit, it is unlikely to be fair, reasonable and just. It is more likely to be fair if it is for example 10% of the cost of the holiday.”

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