Article 71/2021

Labour Edge

What are the requirements for the defence of duress?

  1. The requirements for duress are that the person alleging duress had been subjected to a threat of physical force or imminent harm, impelling him to be reasonably afraid and which induced him to enter into the contract.
  2. The supreme court of appeal, in Medscheme Holdings (Pty) Ltd and Another v Bhamjee 2005 (5) SA 339 (SCA), at paragraph [18], wrote:

‘In commercial bargaining the exercise of free will … is always fettered to some degree by the expectation of gain or the fear of loss … hard bargaining is not the equivalent of duress, and that is so even where the bargain is the product of an imbalance in bargaining power. Something more … would need to exist for economic bargaining to be illegitimate or unconscionable and thus to constitute duress.’

June 12, 2025

In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

June 5, 2025

A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?

May 29, 2025

The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?