Analyses: The Inducement of a Contract by ‘Duress of Goods’ – A Reappraisal

• Jurisdiction: South Africa
• Citation: (2006) 18 SA Merc LJ 175
• Published date: 16 August 2019
• Author: Graham Glover
• Date: 16 August 2019
• Pages: 175-185

Analyses

The Inducement of a Contract by ‘Duress of

Goods’ – A Reappraisal

GRAHAM GLOVER

Rhodes University

1 Introduction

It is a hallowed principle of the South African law of contract that an

agreement entered into under duress is voidable at the instance of the aggrieved

party. (For the traditional test for duress, see Sir JW Wessels The Law of

Contract in South Africa 2 ed (1951) in par 1167; Broodryk v Smuts NO 1942

TPD 47. Other leading cases that adopt the classic test are: Arend & Another

v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C) at 306B; Machanick Steel

& Fencing (Pty) Ltd v Wesrhodan (Pty) Ltd 1979 (1) SA 265 (W) at 271C;

Paragon Business Forms (Pty) Ltd v Du Preez 1994 (1) SA 434 (SEC) at 439D;

Rothman v Curr Vivier Incorporated & Another 1997 (4) SA 540 (C) at 551I-J;

Benkenstein v Neisius & Others 1997 (4) SA 835 (C) at 845F-G; Van den Berg

& Kie Rekenkundige Beamptes v Boomprops 1028 BK 1999 (1) SA 780 (T) at

784G-H; BOE Bank Bpk v Van Zyl 1999 (3) SA 813 (C) at 825E-G; BOE Bank

Bpk v Van Zyl 2002 (5) SA 165 (C) at 177B-C.)

History shows, however, that the circumstances in which a person was

entitled to rescind a contract for duress have been very limited. In Roman

times, for a legitimate case of duress, the threat could only be directed against

the victim himself or his children, and had to constitute a threat of physical

harm: either of death, enslavement, imprisonment, an attack upon the person’s

chastity, or the accusation of a capital charge (see JAC Thomas Textbook of

Roman Law (1976) at 227; Reinhard Zimmermann The Law of Obligations:

Roman Foundations of the Civilian Tradition (1990) at 653-4). The same was

true in Roman-Dutch law: only a threat of physical harm to the person suff‌i ced

(see Grotius Inleiding 3.48.6 and Van Leeuwen Censura Forensis 1.4.41.1).

Since a great deal of the South African law of duress is modelled on Roman-

Dutch law, there remains, superf‌i cially anyway, a strong psychological bias

towards the idea that the ‘true’ province of duress is the situation where threats

are made against a person’s life, physical integrity, or liberty. In Kilroe v Bayer

(1915 CPD 717 at 719) Juta JP said: ‘Mere threats are threats and nothing more,

unless they are threats of death by one able to carry them out.’ In the mid 1980s,

Coetzee J in Ex Parte Coetzee et Uxor (1984 (2) SA 363 (W) at 366D) rejected

a claim of duress simply on the basis that ‘die bedreigde leed ... ’n aantasting

175

(2006) 18 SA Merc LJ 175

© Juta and Company (Pty) Ltd