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.’

What is the viewpoint of the labour appeal court, as expressed in SA Municipal Workers’ Union obo Morwe v Tswaing Local Municipality and Another [2023] 2 BLLR 131 (LAC); (2022) 33 SALLR 60 (LAC)?

An employer set out its employees’ rights in disciplinary hearings in the applicable disciplinary code and incorporated same into their employment contracts.

What are the options available to an employee when an employer allegedly owes such employee monies in terms of a contract of employment?