Abstract
The matter of Gerolomou Constructions (Pty) Ltd v Van Wyk (2011 (4) SA 500 (GNP)) alludes to two rather problematic aspects of the law of contract: on the one hand it demonstrates that practically speaking the question of what constitutes an enforceable agreement of compromise is still no easy matter, and despite the sound judgment delivered recently by the Supreme Court of Appeal in Be Bop A Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd (2008 (3) SA 327 (SCA)), it seems that the judiciary’s interpretation as to when an offer of compromise exists remains difficult to predict. On the other hand the Gerolomou decision deals with improperly obtained consensus by way of undue influence, whereas the facts actually fit more comfortably into the niche of so-called economic duress, a form of procedural impropriety that has yet to be recognized as an independent ground for setting aside a contract in our law. This case note examines these issues against the backdrop of the manner in which the case was pleaded.
Highlights
The matter of Gerolomou Constructions (Pty) Ltd v Van Wyk (2011 (4) SA 500 (GNP)) alludes to two rather problematic aspects of the law of contract: on the one hand it demonstrates that practically speaking the question of what constitutes an enforceable agreement of compromise is still no easy matter, and despite the sound judgment delivered recently by the Supreme Court of Appeal in Be Bop A Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd (2008 (3) SA 327 (SCA)), it seems that the judiciary’s interpretation as to when an offer of compromise exists remains difficult to predict
On the other hand the Gerolomou decision deals with improperly obtained consensus by way of undue influence, whereas the facts fit more comfortably into the niche of so-called economic duress, a form of procedural impropriety that has yet to be recognized as an independent ground for setting aside a contract in our law
Thereafter in Medscheme Holdings (Pty) Ltd v Bhamjee (2005 (5) SA 339 (SCA) 346A–B) the Supreme Court of Appeal rather ambivalently affirmed the position adopted in Van den Berg & Kie, and suggested obiter that there seems to be no reason in principle why the threat of economic ruin should not in appropriate instances be recognized as duress (346B)
Summary
The matter of Gerolomou Constructions (Pty) Ltd v Van Wyk (2011 (4) SA 500 (GNP)) alludes to two rather problematic aspects of the law of contract: on the one hand it demonstrates that practically speaking the question of what constitutes an enforceable agreement of compromise is still no easy matter (see further Ismail “Contentious Issues Arising from Payments made in Full and Final Settlement” 2008 PER 154; and cf Zeffertt “Payments ‘In Full Settlement’” 1972 SALJ 35), and despite the sound judgment delivered recently by the Supreme Court of Appeal in Be Bop A Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd (2008 (3) SA 327 (SCA)), it seems that the judiciary’s interpretation as to when an offer of compromise exists remains difficult to predict. On the other hand the Gerolomou decision deals with improperly obtained consensus by way of undue influence, whereas the facts fit more comfortably into the niche of so-called economic duress, a form of procedural impropriety that has yet to be recognized as an independent ground for setting aside a contract in our law. This case note examines these issues against the backdrop of the manner in which the case was pleaded. Thereafter, the defendant paid R19 291,70 to the plaintiff and, subsequently, the plaintiff claimed the balance of the amount he believed was owing to him (amongst other claims) in the magistrates’ court
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