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.’

March 10, 2025

What is an employer to do when it suspects that a medical practitioner is issuing pre- signed sick notes, or permitting its employees to buy sick notes, or, alternatively, is engaging in some other dubious practice regarding the issue of sick notes? What is an employer to do when it suspects that a person is not entitled to practice as a medical doctor?

March 7, 2025

Are you required to interpret any of the following: pre-trial minutes, strike ballot guidelines, the LRA, a separation agreement, a benefits dispute, an arbitration award, the BCEA, a restraint of trade, a traditional disciplinary enquiry charge sheet, the constitution of a trade union, etc?

March 4, 2025

The labour appeal court recently, in Murray and Roberts Cementation (Pty) Ltd v AMCU obo Dube and Others (2024) 35 SALLR 116 (LAC), confirmed important principles relating to the formulation of traditional charge sheets, determining the
fairness of a dismissal, the interpretation of a charge sheet and the reason(s) relied upon by the employer to justify the dismissal of an employee.