What are the requirements for the defence of duress?
- 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.
- 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.’
