African Regional Intellectual Property Organisation v Intermedia Agencies (Private) Limited and Reginald Chapfunga

The applicant sought summary judgment for payment of money owed by the respondents. On 15 October 2010, the first respondent signed an acknowledgment of debt and the second respondent signed a deed of surety binding himself as surety and co-principal debtor for the debt owed by the first respondent. The respondents defended the action despite the existence of the acknowledgment of indebtedness. In his opposing affidavit, the second respondent claimed he signed the acknowledgment of debt under duress, alleging that after the matter was reported to the CID fraud section, a senior police officer directed him to sign the acknowledgment with the applicant's legal practitioners. He stated he felt threatened as it was his first time being reported to police, but admitted the police were not present when he signed the documents. He did not deny receiving the money but sought to explain why the respondents did not perform the work they were paid for.

• Whether the respondent had established a valid defence based on duress to resist summary judgment
• Whether the defence raised was bona fide or entered for dilatory purposes
• Whether summary judgment should be granted despite the respondents' opposition

Summary judgment was granted in favour of the applicant against the respondents jointly and severally for the sum of US$6,773.50 together with interest on US$5,973.50 at 5% per annum from 13 November 2009 to payment in full, and on US$700.00 at 5% per annum from 22 March 2010 to payment in full. The respondents were ordered to pay costs on a legal practitioner and client scale as well as collection commission as determined by the Law Society Tariff and By-Laws.

An allegation of duress will not constitute a valid defence to summary judgment where: (1) the defendant fails to explain how duress was actually brought to bear upon them; (2) the alleged threatening party was not present when the acknowledgment of debt was signed; and (3) the defendant's explanation amounts only to a subjective feeling of being threatened without objective evidence of actual coercion. A defence that does not disclose any genuine legal basis and appears to be entered merely for dilatory purposes will not prevent the granting of summary judgment.

The court observed that the second respondent sought to explain extraneously why the respondents did not undertake the job they were paid for, but notably did not deny receiving the money. This suggests that even if there were issues with performance, the appropriate avenue would not be to resist summary judgment on an acknowledged debt but rather to raise any counterclaim or set-off separately.

This case illustrates the high threshold required to establish duress as a defence to an acknowledgment of debt in summary judgment proceedings. It demonstrates that mere feelings of being threatened, without actual coercion or the presence of threatening parties at the time of signing, will not constitute duress sufficient to defeat summary judgment. The case also reinforces the principle that defences entered solely for delay purposes will not prevent the grant of summary judgment where there is a clear acknowledgment of indebtedness.