IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

DATE: 25 FEBRUARY 2011

In the matter between: 

and

JUDGMENT

BOZALEK, J

The first and third defendants filed an opposing affidavit but in the event summary judgment in the amount of R178 500,00 was granted against the second and third defendants Summary judgment was granted against the second defendant, even though this was not sought by the plaintiffs. The first and third defendants noted an appeal against the magistrate's judgment. Since no judgment was given against the first defendant and there is no cross-appeal, it is unclear to me on what basis the first defendant lodged an appeal. The first defendant was subsequently placed into liquidation and the liquidator has not been substituted as the plaintiff in the appeal.

The plaintiff sued the defendants on the basis of a written agreement of loan involving the sum of R425 000,00 concluded between the plaintiffs and the first defendant on 11 November 2008. They alleged that the capital sum outstanding, which in terms of the agreement was repayable on demand, stood at R329 000,00. The plaintiff sued the third defendant in terms of a written suretyship agreement, also concluded on 11 November 2008. The third defendant filed an opposing affidavit, made both in her personal capacity and on behalf of the first defendant, wherein she stated that:

"Where a person seeks to set aside a contract or resist the enforcement of a contract on the grounds of duress based upon fear, the following elements must be established:
1. The fear must be a reasonable one;
2. It must be caused by the threat of some considerable evil to the person concerned or his family;
3. It   must   be   a   threat   of  an   imminent   or inevitable nature.

5. The   moral   pressure   must   have   caused damage."

"... the court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of one party or the other. All that the court inquires into is:
(a) Whether the defendant has "fully" disclosed the nature and grounds of his defence and the material facts upon which it is founded.

l
or in part, as the case may be."

In the result I would make the following order: 
1.     The appeal is upheld with costs.
2      The magistrate's order is set aside and replaced with the following order:

(b) Summary judgment against the third defendant is refused and she is granted leave to defend the action. The costs of the summary judgment application in respect of the third defendant will stand over for determination by the trial court.