THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 519/2011

In the matter between:

ANDRIES VISSER
First Appellant
YOLANDE VISSER
Second Appellant

and

EREKA KOTZE
Respondent

Neutral Citation:
Visser v Kotze (519/2011) [2012] ZASCA 73 (25 May
2012)

Coram:
Heher, Van Heerden, Mhlantla, Leach JJA and Ndita AJA

Heard:
30 April 2012

Delivered:
25 May 2012

Summary:
Application for summary judgment – defence of duress
raised – requirements for summary judgment and for
defence of duress – bona fide defence of duress not
disclosed – summary judgment granted

ORDER

On appeal from: Western Cape High Court, Cape Town (Bozalek and Goliath
JJ sitting as a court of appeal):

1 The appeal is upheld with costs on the scale as between attorney and client.
2 The order of the court below is set aside and replaced with the following:
‘1. The appeal is dismissed with costs on the scale as between attorney
and client.
2. The magistrate’s order is amended to the extent reflected in the
substituted order set out hereafter.
3. Summary judgment is granted against the first and third defendants,
jointly and severally, the one paying the other to be absolved, as
follows:
3.1 payment of the sum of R178 500;
3.2 interest on the said sum at the rate of 15.5 per cent per annum
from 4 August 2009 to date of payment;
3.3 costs on the scale as between attorney and client.’

JUDGMENT
_______________________________________________________________
VAN HEERDEN JA (HEHER, MHLANTLA, LEACH JJA and NDITA AJA
concurring):
[1] In this case, the appellants sued a close corporation by the name of
Asapi 1046 CC t/a PFC Durbanville, as the first defendant, in the Bellville
Magistrates’ Court for moneys due and owing under a loan agreement. The
second and third defendants, Ms Noleen van den Bergh and Ms Ereka Kotze,
the latter being the present respondent, were also sued as sureties under a
‘Deed of Suretyship’, signed by them for the debts of the close corporation. To
avoid confusion, I shall refer to the parties as they were in the Magistrates’
Court.

[2] The plaintiffs applied for summary judgment against the first and third
defendants. This was opposed by them on the ground that the loan and
suretyship agreements had been entered into under duress. The magistrate
was unimpressed with this defence. He held that the defendants had not
established a bona fide defence to the plaintiffs’ claim, and granted summary
judgment against them. The first and third defendants then noted an appeal to
the Western Cape High Court. However, the first defendant (the close
corporation) was subsequently liquidated and the liquidators did not proceed
with the appeal.
[3] The third defendant’s appeal to the high court against the summary
judgment order was successful. The high court held that, although the third
defendant’s affidavit opposing summary judgment fell short of being
comprehensive, it succeeded in establishing a bona fide defence of duress
sufficient to ward off summary judgment. The third defendant was granted leave
to defend the action. The high court refused leave to appeal, and the present
appeal by the plaintiffs is before us with the leave of this court.
[4] The material facts are as follows. On 11 November 2008, the plaintiffs
and the first defendant concluded a written agreement of loan, in terms of which
the plaintiffs agreed to lend the first defendant an amount of R425 000. It was
noted that this amount had already been paid to the first defendant. No interest
was payable on the loan, but the first defendant was obliged to repay the capital
amount on demand. The first defendant consented to the jurisdiction of the
relevant magistrates’ court in respect of all proceedings connected with the
agreement.
[5] On the same day, the second and third defendants signed a document
titled ‘Deed of Suretyship’, in terms of which they bound themselves as sureties
and co-principal debtors with the first defendant for all and any debts owed by
the first defendant to the plaintiffs. The second and third defendants also
consented to the jurisdiction of the magistrates’ court. Furthermore, the
suretyship provided that the amount of any debt of the first defendant for which
the sureties were liable to the plaintiffs would be established by a certificate

signed by the plaintiffs, which would be proof of the amount of the indebtedness
and valid for the purpose of obtaining summary judgment.
[6] According to the plaintiffs, the defendants paid a total amount of
R96 000, leaving an outstanding balance of R329 000, as set out in a certificate
by the plaintiffs. By means of a letter dated 27 July 2009, addressed to the
defendants by the plaintiffs’ attorneys, the plaintiffs demanded payment of the
sum of R329 000 within 7 days. Neither this nor any other amount was paid by
the defendants, giving rise to the action in the magistrate’s court referred to
above.
[7] The first and third defendants entered appearance to defend and the
plaintiffs then applied for summary judgment against them. This was opposed.
In her affidavit opposing summary judgment on behalf of both herself and the
first defendant, the third defendant stated the following:
‘In and during October 2008, the Plaintiffs submitted the Defendants with documents to
be signed in replacement of the existing Agreements. The Plaintiffs related that the first
agreements already signed were not worth the paper it was written on. As a result, the
Defendants consulted with their previous Attorney, Mr JP Van Niekerk of Smit Kruger
Inc in Durbanville, who advised us against signing such documentation for various
reasons, most important of which was the fact that the capital amount in the Loan
Agreement was incorrect as per paragraph 6 hereunder.
After attending a meeting with Mr Van Niekerk on or about the 30th October 2008 in
Durbanville, both Second Defendant and I were accosted by the Plaintiffs in their
double-cab LDV, who pulled their vehicle in front of us preventing us from being able to
move forward and in the process, nearly driving over my foot.
The First Plaintiff then started attacking my character, accusing me of being a thief, and
further threatening that if Second Defendant and I did not sign the documentation
which they had presented to us, they would report us to the Commercial Unit of the
SAPS, and also inform my husband. The First Plaintiff was well aware of the fact that I
am petrified of my husband who previously held a high position within the Directorate of
Special Operations (Scorpions), and that I would do anything to prevent the Plaintiffs
from making contact with him to inform him of the First Defendant’s precarious financial
position.
As a consequence of the coercion and fear which was installed upon the Second
Defendant and I, we reluctantly signed the new Loan Agreement which is marked

Annexure “B” to the Plaintiffs’ Particulars of Claim, as well as the Deeds of Suretyship
marked Annexure “C” thereto.’
[8] As recorded earlier, this reliance on duress as a defence to avoid
summary judgment did not succeed in the magistrates’ court. It did, however,
succeed on appeal to the Western Cape High Court which refused summary
judgment and gave the third defendant leave to defend the action. Which of
these approaches is correct is the subject of the present appeal.
[9] Magistrates’ court rule 14 deals with summary judgment. In terms of
rule 14(3)(c), as it was at the time of this case:
‘Upon the hearing of an application for summary judgment, the defendant may –
. . . .
(c) satisfy the court by affidavit delivered not later than noon of the day preceding the
hearing of the application (which affidavit may by leave of the court be supplemented
by oral evidence) that he has a bona fide defence to the claim on which summary
judgment is being applied for or a bona fide counterclaim against the plaintiff. Such
affidavit and evidence shall disclose the nature and grounds of the defence or
counterclaim.’1
The new rule 14(3)(b), the successor to rule 14(3)(c), provides that ‘such
affidavit or evidence shall disclose fully the nature and grounds of the defence
and the material facts relied on therefor’ (emphasis added), which is the
wording used in the equivalent Uniform rule 32(3)(b). As the case law shows,
however, the difference in wording makes no difference to the requirements for
an affidavit opposing summary judgment. 2
[10] The remedy of summary judgment has for many years been regarded
as an extraordinary and stringent one in that it closes the doors of the court to
the defendant and permits a judgement to be given without a trial. However, in

1 The Magistrates’ Court Rules were subsequently amended by GN R740 in GG 33487 dated
23 August 2010.
2 See, eg, Van Eeden v Sasol Pensioenfonds 1975 (2) SA 167 (O) at 177E-178C. See also
Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 228C-E; Maharaj v Barclays National
Bank Ltd 1976 (1) SA 418 (A) at 426A-E.

Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture,3 Navsa
JA, in holding that the time has perhaps come to discard labels such as
‘extraordinary’ and ‘drastic’, stated:4
‘The rationale for summary judgment proceedings is impeccable. The procedure is not
intended to deprive a defendant with a triable issue or a sustainable defence of her/his
day in court. After almost a century of successful application in our courts, summary
judgment proceedings can hardly continue to be described as extraordinary. Our
courts, both of first instance and at appellate level, have during that time rightly been
trusted to ensure that a defendant with a triable issue is not shut out. In the Maharaj
case5 at 425G-426E, Corbett JA was keen to ensure, first, an examination of whether
there has been sufficient disclosure by a defendant of the nature and grounds of his
defence and the facts on which it is founded. The second consideration is that the
defence so disclosed must be both bona fide and good in law. A court which is satisfied
that this threshold has been crossed is then bound to refuse summary judgment.
Corbett JA also warned against requiring of a defendant the precision apposite to
pleadings. However, the learned judge was equally astute to ensure that recalcitrant
debtors pay what is due to a creditor.
Having regard to its purpose and its proper application, summary judgment
proceedings only hold terrors and are “drastic” for a defendant who has no defence.
Perhaps the time has come to discard these labels and to concentrate rather on the
proper application of the rule, as set out with customary clarity and elegance by Corbett
JA in the Maharaj case at 425G-426E.’
[11] As already indicated, one of the ways in which a defendant can avoid
summary judgment, is to satisfy the court by affidavit that he or she has a bona
fide defence to the claim on which summary judgment is being applied for. The
word ‘satisfy’ does not mean ‘prove’. What the rule requires is that the
defendant must set out in his or her affidavit facts which, if proved at the trial,
will constitute an answer to the plaintiff’s claim. The classic and much-quoted

3 Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA).
4 Paras 32-33.
5 Referred to in fn 2 above.

formulation of the approach to an affidavit opposing summary judgment is that
set out by Corbett JA in the Maharaj case6 as follows:
‘Accordingly, one of the ways in which a defendant may successfully oppose a claim
for summary judgment is by satisfying the Court by affidavit that he has a bona fide
defence to the claim. Where the defence is based upon facts, in the sense that material
facts alleged by the plaintiff in his summons, or combined summons, are disputed or
new facts are alleged constituting a defence, the Court does not attempt to decide
these issues or to determine whether or not there is a balance of probabilities in favour
of the one party or the other. All that the Court enquires into is: (a) whether the
defendant has “fully” disclosed the nature and ground of his defence and the material
facts upon which it is founded, and (b) whether on the facts so disclosed the defendant
appears to have, as to either the whole or part of the claim, a defence which is both
bona fide and good in law. If satisfied on these matters the Court must refuse summary
judgment, either wholly or in part, as the case may be. The word “fully”, as used in the
context of the Rule (and its predecessors), has been the cause of some Judicial
controversy in the past. It connotes, in my view, that, while the defendant need not deal
exhaustively with the facts and the evidence relied upon to substantiate them, he must
at least disclose his defence and the material facts upon which it is based with
sufficient particularity and completeness to enable the Court to decide whether the
affidavit discloses a bona fide defence . . . At the same time the defendant is not
expected to formulate his opposition to the claim with the precision that would be
required of a plea; nor does the Court examine it by the standards of pleading.’7
[12] As is evident from the extract from her affidavit set out above, the third
defendant’s defence to the plaintiffs’ claim under the loan agreement and the
suretyship agreement was one of duress. Allegations were also made about the
capital amount reflected in the loan agreement, the payments made by the first
defendant and the balance owing by the first defendant to the plaintiffs. We
need not concern ourselves with these latter allegations in that, during the
hearing before the magistrate, the plaintiffs confined their claim to an amount of

6 At 426A-E,cited by Navsa JA in Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint
Venture para 24 fn 11.
7 See also Tesven CC & another v South African Bank of Athens 2000 (1) SA 268 (SCA) paras
22-23.

R178 500, an amount conceded by the third defendant (in her opposing
affidavit) as indeed being due by the first defendant to the plaintiffs. The third
defendant’s opposition to the summary judgment proceedings thus stands or
falls by her reliance on duress.
[13] The elements necessary to set aside a contract on the ground of duress
were described by Corbett J in Arend & another v Astra Furnishers (Pty) Ltd8 as
follows:
‘[I]t is clear that a contract may be vitiated by duress (metus), the raison d’etre of the
rule apparently being that intimidation or improper pressure renders the consent of the
party subtracted to duress no true consent. . . Duress may take the form of inflicting
physical violence upon the person of a contracting party or of inducing in him a fear by
means of threats. Where a person seeks to set aside a contract, or resist the
enforcement of a contract, on the ground of duress based on fear, the following
elements must be established:
(i)
The fear must be a reasonable one.
(ii)
It must be caused by the threat of some considerable evil to the person
concerned or his family.
(iii)
It must be the threat of an imminent or inevitable evil.
(iv) The threat or intimidation must be unlawful or contra bonos mores.
(v)
The moral pressure used must have caused damage.’9
[14] To assess the third defendant’s defence of duress, it will be useful at
this stage to repeat the material part of her affidavit opposing summary
judgment:
‘The First Plaintiff then started attacking my character, accusing me of being a thief,
and further threatening that if Second Defendant and I did not sign the documentation

8 Arend & another v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C).
9 At 305 in fin – 306C. See also Paragon Business Forms (Pty) Ltd v Du Preez 1994 (1) SA 434
(SE) at 439A-E; BOE Bank Bpk v Van Zyl 2002 (5) SA 165 (C) para 36; Shoprite Checkers (Pty)
Ltd v Jardim 2004 (1) SA 502 (O) paras 10-11. See also Schalk van der Merwe, LF van
Huyssteen, MFB Reinecke & GF Lubbe Contract General Principles 3 ed (2007) at 117ff; RH
Christie & GB Bradfield Christie’s The Law of Contract in South Africa 6 ed (2011) at 313ff and
the other authorities cited by these authors.

which they had presented to us, they would report us to the Commercial Unit of the
SAPS, and also inform my husband. The First Plaintiff was well aware of the fact that I
am petrified of my husband who previously held a high position within the Directorate of
Special Operations (Scorpions), and that I would do anything to prevent the Plaintiffs
from making contact with him to inform him of the First Defendant’s precarious financial
position.’ (Emphasis added.)
[15] Reliance on the highlighted part of the affidavit set out in the preceding
paragraph is misplaced. It does not even approximate a defence that the
agreements are vitiated by duress. The threat is not unlawful – it appeared to be
common cause that the first defendant was in a precarious financial position
and the communication of this fact to anyone could hardly be considered
unlawful. The third defendant does not dispute the fact that the first defendant
was indebted to the plaintiffs or that she signed the two agreements. The
concern that she expresses is that her husband will come to know of the first
defendant’s financial position. That her husband might react badly to learning of
the first defendant’s financial position can hardly be regarded as duress on the
part of the plaintiffs.
[16] The crux of the third defendant’s asserted duress is that it was the fear
of communication to or contact with her husband on that aspect that drove her
to signing the agreements. There is no direct allegation in the affidavit referred
to the preceding paragraph and in para 7 above that it was fear or pressure in
respect of the other aspects mentioned that caused the third defendant to sign
the agreements. In any event, a report to the Commercial Unit of the SAPS
would not, to any right-minded person not guilty of any criminal wrongdoing,
have constituted a threat. A loan agreement and a suretyship agreement were
in issue. There is no discernable link to any criminal conduct deserving the
attention of the police.
[17] It must also be remembered that, although the confrontation between
the plaintiffs and, inter alia, the third defendant took place on 30 October 2008,
the loan agreement and deed of suretyship were signed only on 11 November
2008. The third defendant made no allegation that she had any contact
whatsoever with the plaintiffs during this 12-day period. It is also not stated in
her affidavit whether, during this 12-day period, either plaintiff made any attempt

to carry out any of their alleged ‘threats’ by contacting either the SAPS or the
third defendant’s husband. She also did not indicate whether, during this period,
she sought legal advice or in any other way attempted to avert the evil which
she allegedly feared. This lapse of time makes the defence of duress even
more implausible.
[18] In light of the above, it is clear that the third defendant’s affidavit
opposing summary judgment has not disclosed a bona fide defence of duress to
the plaintiffs’ claim.
[19] Counsel for the third defendant contended that, even if it be found that
third defendant’s affidavit lacks particularity regarding the material facts relied
upon and falls short of the requirement of the sub-rule, the court may still, in an
appropriate case, exercise its discretion in favour of the third defendant and
refuse summary judgment if there is doubt as to whether the plaintiffs’ case is
unanswerable.10 He argued that this was such a case and that the court below
should have exercised its discretion in the third defendant’s favour.
[20] As was pointed out in Breitenbach v Fiat SA (Edms) Bpk11 the court’s
discretion in this regard ‘should not be exercised against a plaintiff on the basis
of mere conjecture or speculation. It should be exercised on the basis of
material before the Court.’ In this case, the material before the court is such that
there is simply no basis for the exercise of a residual discretion against the
plaintiffs and in favour of the third defendant.
[21] The plaintiff sought an an award of costs on an attorney and own client
scale, at all the relevant levels. This type of cost order had been foreshadowed
in the provisions of both the loan agreement and the suretyship agreement.

10 At the time of this case, this discretion was to be found in Magistrates’ court rule 14(6), the
relevant part of which provided that ‘the court may, if the defendant does not so. . . satisfy the
court, give summary judgment for the plaintiff.’ The same provision is to be found in the new rule
14(5), the wording of which is almost identical to that of Uniform rule 32(5). Magistrates’ court
rule 14(5) provides that ‘[i]f the defendant does not . . . satisfy the court as provided in subrule
(3), the court may enter summary judgment in favour of the plaintiff.’
11 At 229F.

However, when questioned as to the difference (if any) between attorney and
own client costs, on the one hand, and attorney and client costs, on the other,12
counsel indicated that he was prepared to formulate the relief sought by the
plaintiffs so as to claim attorney and client costs throughout.
[22] The following order is therefore made:
1 The appeal is upheld with costs on the scale as between attorney and client.
2 The order of the court below is set aside and replaced with the following:
‘1. The appeal is dismissed with costs on the scale as between attorney
and client scale.
2. The magistrate’s order is amended to the extent reflected in the
substituted order set out hereafter.
3. Summary judgment is granted against the first and third defendants,
jointly and severally, the one paying the other to be absolved, as follows:
3.1 payment of the sum of R178 500;
3.2 interest on the said sum at the rate of 15.5 per cent per annum
from 4 August 2009 to date of payment;
3.3 costs on the scale as between attorney and client.’

______________________
B J VAN HEERDEN
JUDGE OF APPEAL

12 See Thoroughbred Breeders’ Association v Price Waterhouse 2001 (4) SA 551 (SCA) para
92; L & P Plant Hire Bpk & others v Bosch & others 2002 (2) SA 662 (SCA) para 41.

APPEARANCES:
APPELLANTS:
A D MAHER
Instructed by Johnston Cornelius Attorneys,
Cape Town
Webbers, Bloemfontein

RESPONDENT:
R RANDALL

Instructed by Abrahams & Gross Inc, Cape
Town

Lovius-Block, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

25 May 2012

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Visser v Kotze
(519/2011) [2012] ZASCA 73 (25 May 2012)

Media Statement

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

Today the Supreme Court of Appeal (SCA) delivered judgment upholding the appeal against
an order of the Western Cape High Court, Cape Town. The SCA granted summary
judgment in favour of the appellant and dismissed the appeal of the high court with costs on
the scale as between attorney and client.

The issue on appeal was whether the high court was correct in refusing summary judgment
in favour of the appellants, having found that the respondent’s reliance on duress, as a
defence, was sustainable.

The facts and history of the matter can be summarised as follows:
The appellant and the first defendant close corporation – Asapi 1046 CC t/a PFC
Durbanville - concluded a written loan agreement whereby the appellant agreed to lend the
close corporation an amount of R425 000. The first defendant consented to the jurisdiction
of the relevant Magistrates’ Court in respect of all proceedings associated with the
agreement. The present respondent, Ms Ereka Kotze (the third defendant in the
Magistrates’ Court) and one other, Ms Noleen van den Berg (the second defendant in the
Magistrates’ Court), signed a written ‘Deed of Suretyship’ in terms of which they bound
themselves as sureties and co-principal debtors with the first defendant for all debts owed
by the first defendant to the appellant. The appellants, arising out of the defendants’ failure
to honour its debt, applied for summary judgment in the Magistrates’ Court against the
defendants, who in turn opposed the application on the basis that the loan and the
suretyship agreements had been entered into under duress. The magistrate rejected the
defence of duress and granted summary judgment. The defendants then noted an appeal to
the Western Cape High Court. The close corporation was subsequently liquidated and the
liquidators elected not to proceed with the appeal.

The appeal to the high court by the third defendant against the summary judgment order of
the Magistrates’ Court was successful. The high court found that the respondent
successfully established a bona fide defence of duress and refused the appellants’ leave to
appeal. The appellants then successfully applied to the SCA for leave to appeal against the
order of the high court.

The appellants affirmed that the defendants paid a total amount of R96 000 towards the
principal debt, however a balance of R329 000 remained outstanding culminating in the
legal action undertaken by the appellant for the satisfaction of the debt owing. The SCA
stated that one of the ways in which a defendant can avoid summary judgment, is to satisfy
the court by affidavit that he or she has a bona fide defence to the claim on which summary
judgment is being applied for.

The SCA held that the respondent’s affidavit opposing summary judgment had not disclosed
a bona fide defence of duress to the appellant’s claim, as the evidence disclosed that the
requirements of duress had not been satisfied. The SCA held further that the court’s
discretion should not be exercised against the appellant on the basis of mere conjecture or
speculation and found that the material before the court was such that there was simply no
basis for the exercise of a residual discretion against the appellant in favour of the
respondent.

--- ends ---