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 , 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.’
The institution of review proceedings does not suspend the operation of an arbitration award unless security is furnished to the satisfaction of the court in terms of s145(8) of the LRA. On what basis did the labour appeal court recently resolve the conflict between various labour court judgments interpreting the stay of enforcement of arbitration awards pending review proceedings?
What are the requirements to be met for s158(1)(c) of the LRA to be applicable (dealing with the jurisdiction of the labour court) to make an arbitration award or settlement agreement an order of court?