IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE No, 754/2016
In the matter between
MCEBO MBHUTI DLAMINI Applicant
NEDBANK SWAZILAND LIMITED Respondent
NEDBANK SWAZILAND LIMITED Plaintiff
BOKIE CONSTRUCTION AND CIVIL (PTY) LTD 1st Defendant
MCEBO MBHUTI DLAMINI 2nd Defendant
KHETSIWE NONHLANHLA DLAMINI 3rd Defendant
Neutral citation: Mcebo Bhuti Dlamini v Nedbank Swaziland Limited (754/16) SZHC 28
HEARD : 28/03/2017
DELIVERED : 16/03/2018
 In the course of an action for the recovery of a debt brought against the applicant by the respondent the parties entered into a compromise and to that end executed an acknowledgement of debt signed by the applicant in favour of the respondent. In this application the applicant now seeks to have the settlement agreement and acknowledgment of debt set aside on the basis that he signed the acknowledgment of debt under ‘duress’.
The facts giving rise to the matter before me can be summarised below:
During 2016 the respondent instituted an action in this court by way of simple summons in terms of which it claimed payment of a sum of E 2, 238, 098,19. As it turns out this claim arises from an alleged breach of a loan agreement entered into between the respondent, a financial institution, and a construction firm being the company Bokie Construction and Civil (Pty) Ltd cited as the 1ST Respondent in the said action, and the applicant presently together with one Ms Ketsiwe Nonhlanhla Dlamini cited as the 2nd and 3rd Defendants respectively.
 The loan agreement on which the claim is founded was signed by the 2nd and 3rd Respondents as co-sureties and principal debtors to the 1st Defendant. They happen to be the directors of the company, but they are also cited in their respective capacities as sureties and co-principal debtors to the loan contract. It turns out it is the applicant that was the interlocutor for the 1st Defendant in the proceedings and in the process caused a Notice of intention to defend to be entered on behalf of the Defendants.
 The bank subsequently issued a Notice of Intention to amend its summons the effect of which was to seek the declaration of certain fixed property to be executable. The Applicant states he immediately filed a notice to oppose that notice as well on procedural grounds.
 It appears that whilst the proceedings were pending there was a course of out-of-court dealings between the applicant (in person) and the plaintiff’s attorneys the outcome of which was the acknowledgment of debt which was drawn and duly executed by the applicant and the plaintiff on the 25th July, 2017.
 What the applicant alleges however, was that the settlement agreement was procured by means duress. In elaboration it appears that, what he really means was that the acknowledgment of debt was obtained by way of certain misrepresentations of fact and that in this regard he alleges he was beguiled by the Plaintiff’s attorneys into signing the said settlement instrument. That in a nutshell is what this application is about.
 A question has arisen is whether a party to a settlement agreement or acknowledgment of debt entered into during the course of out-of-court dealings between litigants, may disavow and avoid such agreement by reason that the Applicant signed the settlement agreement under duress.
 Before me is an interlocutory application brought by the applicant, a businessman carrying on business as a building contractor, cited as defendant pursuant to an action brought by the Respondent. In that action the Respondent, a financial institution seeks payment of a contractual claims in the sum of E2, 238, 098. 19. In the action the Applicant is cited in his personal capacity as a co-principal debtor jointly and severally with a company under which the construction undertaking is run together with his wife Mrs Khetsiwe Nonhlanhla Dlamini.
 The applicant and his spouse are both co-directors and co-sureties for the company in its obligations to the Respondent. The Applicant, the company and his wife are thus cited as co-defendants in the matter appearing as 1st, 2nd and 3rd Defendants respectively. It is not necessary to detail the particulars of the Respondent’s claim herein. These are not immediately essential to the issue before me. For ease of reference I prefer to refer to the parties as they appear and are cited in the action. Where convenient I shall however also refer to the the 1st Defendant interchangeably as the Applicant.
 In the litigation, the underlying action was initiated by way of a simple summons which the Plaintiff sought to supplement the summons by way of an amendment thereto. To this end it caused a Notice of Amendment to be issued and served on the defendants wherein it noted an intention to insert an additional prayer to the relief sought in terms of which it was seeking an order declaring a certain immovable property executable. The property in question happens to be a property where the residential premises of the 1st and 2nd Defendants is situated and where they reside. It is described as Portion 8 of Farm 315, Malagwane, Mbabane.
 The defendants thereafter filed a Notice of Intention to Defend and entered an appearance through their attorneys presently. They also vigorously contested and objected to the amendment of the summons on the basis that the proceeding was an irregular step in terms of the rules by reason that it was premature as the Plaintiff had not delivered a declaration in terms of Rule 20 (1) of the Rules of the High Court.
 In the event the proposed amendment to the Plaintiff’s summons was not effected but it emerges that during June and July 2016 the Applicant presently entered into a course of discussions with the attorneys of the Plaintiff which culminated in the negotiation and execution of the acknowledgment of debt or settlement of agreement concerned in this application. This was concluded on the 25th July 2016.
The deed of settlement sets out the defendant’s indebtedness to the bank and the settlement terms as follows:
(I quote some of the key terms sans headings)
“ACKNOWLEDGEMENT OF DEBT/ AGREEMENT OF SETTLEMENT
1.1 The Plaintiff has instituted proceedings against the Defendants in the above matter for the relief as set out in the Summons.
1.2 The Parties have agreed to settle the matter on the terms and conditions as stated herein.
The Defendants, hereby duly represented by MCEBO MBHUTI DLAMINI in his personal capacity and official capacity as director of 1st Defendant hereby acknowledge to be indebted to the Plaintiff in the agreed amounts of:-
2.1 Claim A in the sum of E1, 135, 279.90 (One million One Hundred Thirty Five Thousand Seventy Nine Emalangeni Ninety Cents) in respect of monies loaned and advanced to Defendants by Plaintiff, by virtue of a home loan agreement.
2.2 Claim B in the sum of E 115, 267.27 (One Hundred Fifteen Thousand Two Hundred Sixty Seven Emalangeni Twenty Seven Cents) in respect of moneys loaned and advanced to the Defendants by Plaintiff, by virtue of a business loan.
2.3 Claim C in the sum of E659,014.24 (Six Hundred Fifty Nine Thousand Fourteen Emalangeni Twenty Four Cents) in respect of mones loned and advanced to the Defendants by Plaintiff.
2.4 Claim D has been settled in full.
2.5 Interest on the abovementioned sums of monies at the rate of prime plus 2% per annum a temporae morae;
2.6 Collection commission in the sum of E52, 391.00 (Fifty Thousand Three Hundred Ninety One Emalangeni).
2.7 Legal costs at Attorney and own Client scale in case number 754/ 2016 in an amount of E19, 500.00 (Nineteen Thousand Five Hundred Emalangeni)
2.8 E606.00 (Six Hundred and Six Emalangeni) in respect of Deputy Sheriff’s fees.
The Defendants will liquidate the amounts referred to in 2 as follows:
3.1 As at 25th July 2016, the Defendants have already made payment in respect of Claim D in full.
3.2 The Defendants are to pay the sum of E 115, 267. 27 (One Hundred and Fifteen Thousand Two Hundred Sixty Seven Emalangeni, Twenty Seven Cents) to clear Claim B in full on or before the 29th July 2016.
3.3 The Defendants are to liquidate Claim C in the sum of E 659,014.24 (Six Hundred Fifty Nine Thousand Fourteen Emalangeni Twenty Four Cents) by paying in two (2) equal instalments. The first payment in the sum of E329, 507. 12 (Three Hundred and Twenty Nine Thousand Five Hundred and Seven Emalangeni Twelve Cents) on or before the 31st August 2016 and the second payment on or before the 30th September, 2016.
3.4 The Defendants are to liquidate Claim A, in the sum of E, 135, 279. 90 (One million One Hundred Thirty Five Thousand Two Hundred Seventy Nine Emalangeni Ninety Cents) by way of paying monthly instalments (sic) in the sum of E20, 000.00 (Twenty Thousand Emalangeni), commencing on or before the 31st September 2016 and on or before the 30th of each succeeding month until the balance due and owing has been paid in full including interest, collection commission, and legal costs.”
 The settlement agreement also sets out remedial provisions conferred on the Plaintiff in the event of default by the defendants including an acceleration clause and a provision that in that event the Plaintiff would be entitled to have a certain property mortgaged by the defendants in its favour be deemed executable. This is the property I refer to earlier in respect of which the Plaintiff had sought to introduce a prayer to this effect- Portion 8 of Farm 315 Hhohho. It must be added further that in the acknowledgement of debt the applicant nominates the location of the property as the defendant’s domicilium citatandi et executandi.
At paragraph 4.3 the Agreement provides as follows:
“The Plaintiff shall in addition to any other rights which it may have in Law, be entitled to enforce the provisions of this Agreement of Settlement as if it were a Judgement (sic) of the Court”
 It is not in dispute that the applicant in executing the agreement duly appended his signature to the deed of settlement by affixing his signature over the words “MCEBO MBHUTI DLAMINI FOR DEFENDANTS”.
 I must state at the onset that there was at least one payment tendered by the applicant on the 31st July 2016 subsequent to the signing of the agreement although applicant is adamant that the said payment was not made towards meeting his obligations under the agreement but as he avers, merely, because ‘I have been making regular payments even before the signing of the purported settlement agreement”. I shall deal with this aspect in due course in the judgment.
The Applicant’s case
 In his founding papers the applicant sets about to lay out the circumstances and facts on the basis of which he seeks to avoid and disavow the agreement of debt.
He states that subsequent to the Plaintiff’s failed attempt at amending the summons he was called on the telephone and invited by the Plaintiff’s attorneys to their offices for purposes of settlement talks and that this all occurred on the 25th July 2016, the date of the Settlement Agreement.
He goes on to state the purpose of the invitation as follows:
“ 4.3. …………I was told that the aim of the meeting was to find a lasting solution to the pending litigation which will see the matter being resolved without a protracted trial which could be costly to me. Upon arrival I was furnished with a copy of a document titled ‘Acknowledgment of Debt/ Settlement Agreement’. When I asked what was that document, I was told it was not a court pleading, nor was it a binding agreement, I was told that in as much as they were being lenient to me they were under pressure from the bank who requires them to furnish constant progress updates.
I was therefore requested to sign the document as a formality so that it could be reproduced to the bank when an update is sought. I duly signed the document.
(A copy of the document agreement is annexed hereto marked ‘BK1’’)”
Further on in his affidavit the Applicant proceeds to articulate his cause in the application in the following terms:
5.1. In the present application I am seeking the setting aside of the settlement agreement which I deposed to and which purports unequivocal acknowledgement of debt and consent to have my home declared executable in respect of my company’s debt. During the signing of the agreement certain facts were misrepresented to me. Firstly I was told that the agreement was not a binding agreement but would be used to demonstrate to the bank that progress was taking place in this matter. Secondly, I was told that the documents are not a pleading in any way therefore it will not be used in court at all. It therefore follows that at the time of the signing of the document purporting acknowledgment of debt; I did not in any way have an intention to be bound by the terms of the agreement”
Finally he alleges in paragraph 5.2 of the affidavit that:
“5.2 …………I asked the Respondents (Plaintiff’s) attorneys about the practicality of Clause 3.3 of the agreement which provides that I undertake to pay the amount of E659, 014. 24 (Six Hundred and Fifty Nine Thousand Emalangeni) (sic) in two equal instalments. Again, it was mentioned to me that I should not worry about this clause because the document was not in any way intended to be binding upon the parties.
5.3 I humbly submit that it can be reasonably inferred from the circumstances surrounding this matter that I did not intend to be bound by the agreement at hand. Firstly at the point of signing, I had already filed and served a notice of intention to defend the action proceedings. I did not withdraw my notice of intention to defend to signal in any way that I am no longer opposed to the action. Secondly prior to the signing of the agreement, I also filed an objection to the respondent’s intended amendment by adding a prayer in its summons to the effect that my family home should be declared executable in respect of my company’s debt………….”
 Therein in a nutshell lies the essence of the Applicant’s foundational facts on which he grounds the assertion that the agreement was procured in duress. Needless to say it may be noted that it is not stated in the applicant’s affidavit as to who was the person to whom the alleged misrepresentations alluded to and ascribed to the Plaintiff’s attorney are attributed.
Thus far the facts are common cause.
What is in contention factually are the circumstances leading to the procurement of the acknowledgement of debt as well as its signing by the applicant and the respondent. These facts are highly pertinent and material regard being had to the peculiar nature of the application and the relief sought herein.
The critical foundational facts as outlined and deposed to by Mr Mcebo Dlamini (the applicant) in his founding affidavit are stated verbatim as follows:
“(I) received a call from the respondent’s attorneys, who invited me to a settlement meeting at their offices on the 23rd of July, 2016. I was told that the aim of the meeting was to find a lasting solution to the pending litigation which will see the matter being resolved without a protracted trial which would be costly to me. Upon arrival, I was furnished with a copy of a document titled ‘acknowledgement of debt/agreement of settlement’. When I asked what was that document, I was told that it was not a court pleading, nor a binding agreement. I was told that in as much as they were being lenient to me they were under pressure from the bank which requires them to furnish constant progress updates. I was therefore requested to sign the document as a formality so that it could be reproduced by the bank when an update is sought. I duly signed the document.
 This is in paragraph 4.3 of the affidavit of Dlamini. Further emphasis on the above allegations is given in paragraph 5 where he again avers:
“In the present application I am seeking an order of the above honourable court setting aside the settlement agreement which I deposed to and which purports unequivocal acknowledgment of the debt and consent to have my home declared executable in respect of my company debt. During the signing of the agreement certain facts were misrepresented to me. Firstly, I was told that the agreement was not binding document but would be used to demonstrate to the bank that progress was taking place in this matter. Secondly, I was told that the document is not a pleading in any way, therefore it will not be used in court at all. It therefore follows that at the time of the signing of the document purporting acknowledgment of debt; I did not in any way have an intention to be bound by the terms of the agreement”
 Apart from these statements the affidavit is short on factual detail as to the circumstances of the alleged duress or inducement. No details as to particulars of the person on the part of the ‘respondent’s (plaintiff’s) attorneys who allegedly made the representations referred to in the founding affidavit.
 There is much however of what for want of a better phrase could be regarded as legal contentions or conclusions preferred as statements in the applicant’s founding affidavit. This appears in paragraphs 5.3 and 5.5 of Dlamini’s affidavit where he says respectively:
“5.3 I humbly submit that; it can be reasonably inferred from the circumstances surrounding this matter that I did not intend to be bound by the agreement at hand. Firstly, at the point of signing, I had already filed and served a notice of intention to defend the action proceedings. I did not withdraw my notice of intention to defend to signal in any way that I am no longer opposed to the action. Secondly, prior to the signing of the agreement, I also filed an objection to the respondent’s intended amendments by adding a prayer in its summons to the effect that my family home should be declared executable in respect of my company’s debt. I would like to refer he above honourable court to clause 4.2 of the purported acknowledgment of debt agreement. It is my humble submission that, the respondent had malicious intentions when it induced me to sign the agreement. I could not have intended to be bound by an agreement declaring my home executable, whilst on the other hand I had out-rightly opposed an amendment of summons to that effect”
5.4 Furthermore, the provisions of clause 3.3 which require me to pay exorbitantly high instalments amounts, is indicative that I was being set up for default from the onset. To this end, it is my humble submission that the respondent had mala fide intentions of circumventing the process of filing a declaration containing its particulars of claim and risk the possibility of having its intended amendment being effectively objected to. As such, the respondent then used devious means of binding me, as an unsuspecting party to an agreement which I did not intend to be bound.
5.5 I am advised by my attorneys and verily believe that, where a party to any court proceedings has officially appointed attorneys of record; any communication or correspondence from the other party must be carried out through its attorneys of record. I am advised further that, the respondent’s actions of communicating with me directly and by-pass my attorneys of record was disingenous. This too is indicative of the respondent’s malicious intentions of coercing me to sign the agreement. I am advised by my attorneys and verily believe that if respondent had honest and bona fide intentions, it could not have by-passed my attorneys who have been formally appointed as attorneys for the record. ((sic) underlining supplied for emphasis)
 Curiously no further facts are supplied as regards the allegation of duress nor are there any to elaborate on the misrepresentations. The allegations of ‘coercion’ are manifold.
 It is however clear, if one has the above allegations as the only basis to go by as foundation for the relief the applicant is seeking, that what he seeks to set out are essentially allegations of ‘inducement by misrepresentation’ as opposed to duress. There is a distinction.
 Now it is well recognised that a simple misrepresentation made fraudulently or innocently may induce a person into entering into a contract and that where this can be shown, such misrepresentation has the effect of rendering such contract voidable at the instance of the represented. Such a party may seek to have the contract set aside.
(See AJ Kerr, The Principles of the Law of Contract, 6th Ed, Butterworths, 2002 at page 295 and the cases cited therein)
 I am mindful of the point in limine as regards the nature of the application and the relief sought in regard to which I was strongly urged to dismiss the application purely on the basis that it has been brought to ‘cause the setting aside of an acknowledgement of debt in anticipation to or in circumstances where the said settlement agreement that has not yet been made an order of court; it is was contended by Mr Mabuza that such relief would be incompetent in the premises.
 I regard this argument as one that much to do with form rather than legal substance. I agree with Mr Tsabedze that to dismiss the application merely on this basis would be overly technical. I am not convinced in any event of the soundness of this proposition on procedural law and I have not been furnished with sufficiently satisfactory authority as to its correctness.
 It is indeed suggested by Kerr (supra) that as part of the remedial options open to a representee, he may seek the setting aside of the contract. I have seen no authority to the effect that such a step can only be taken in defence or only after the contract has been made an order of court. In any event that would be rather artificial and fastidious in view of the context of this application coming in the wake of the Plaintiff own pending application for the entering of the settlement as an order of court. I find no merit in the point in limine.
 Coming to the substance of the application, there is however a patent confusion in the applicant’s case as to whether he seeks to rely on duress or simple misrepresentation (whether fraudulent or innocent) as a ground for the setting aside of the agreement. He vacillates between these two posts in both his averments on affidavit or in his submissions as put up by his attorneys. The twain cannot meet and are distinct grounds in law.
Now it is trite that duress or metus as a ground where shown is sufficient basis for the setting aside of a contract at the instance of party alleging such duress. In the case of Savvides v Savvides and Others 1986(2) SA 325 TPD at 330 B the court outlined the following elements to duress on the basis of which it can be found to exist:
a) there must be a threat of imminent evil, for example, to life, person, honour or property of a person and member of his/her family. (Arend v Astra Furnishers (Pty) Ltd 1974 (1) A 298 (C) 305 H:
b) the threat must be unlawful (Kruger v Secretaris van Binnelandse Inkomste ;
c) the threat must have induced the threatened party to enter into the contract or to agree to terms which but for the inducement he would not have agreed. (See the Arend case above)
Expressed in another way the test for duress is stated by Damaseb JP in the Namibian case of MB De Klerk & Associates v Eggerschieler and Ano:
“The test for duress as a ground for avoiding a contract.
If a proper case for duress is made out the agreement which resulted therefrom is voidabel on the basis that there was no true consent. The improper pressure must have been the direct cause for entering into the transaction. The person alleging such duress bears the onus of proof. The pressure must be directed to the party, or to his or her family, must relate to an imminent injury to be suffered by the party himself in person or his property. Additionally, it must be proved that the pressure was exercised unlawfully”
Kerr, puts it thus:
“If the consent of one of the parties to a contract was obtained by improper pressure (usually in the form of threats) of the kind and severity recognised by law in this context which may be implied i.e. not expressed in words or deeds (the onus of proving this being on the person subjected to the pressure), the contract normally is voidble..” (See Kerr ibid., at p319)
 It seems the authorities are consistent and in agreement as to the prequisites for establishment of duress as a ground for avoidance of contracts. Most importantly also that the onus falls on the applicant to show that indeed the circumstances founding such duress to exist.
Did the Plaintiff’s attorney subject the applicant to unlawful threats or pressure which induced him to sign the acknowledgment of debt?
Fear or apprehension of harm being occasioned to one or family either or a personal or proprietary interest.
 On the papers there is a dispute or controvency as to the exact circumstances as to how the deed of settlement or acknowledgement of debt came to be signed. The applicant seeks to impress an account that suggest he was ‘invited’ and was lulled or tricked into signing the agreement. ]
 This account is disputed by the Plaintiff. According to the affidavits deposed by Ms Maeda and Mr Mabuza as confirmed further in that made by the Plaintiffs Senior Credit Manager, Mr Vusi Msibi the acknowledgment of debt was drawn at the instance of the Applicant after a course of settlement negotiations pursuant to his approach to settle the Plaintiff’s claims on certain amicable terms.
 Whereas the account given by the Plaintiffs attorneys and duly confirmed by the Plaintiff through the affidavit of its Managing Director I have not seen any evidence pointing to duress or metus in the sense of either threats or improper pressure of the kind that the authorities on the subjects describe.
 Kerr in reference to the term ‘improper pressure’ refers to its use and application by Selke J in the case of Smith v Smith 1948 4 SA 61 (N) where the pressure shown in the case included threats, assault, bullying and cajolery the effect of which was to reduce the plaintiff to “a state of mental incompetence……which deprived her of the power either of resisting that pressure further or freely and properly applying her mind to the question of her consent to the marriage”.
 Further guidance as to the meaning of improper pressure can be had in the remarks attributable to Wessels AAJA in Union Government (Minister of Finance) v Gowar 1915 AD 426 at 552 where he says:
“What the axact amount of pressure is which will enable a judge to set aside an act, depends very much upon the surrounding circumstances……the pressure necessary to set aside a payment must be of such a nature that it is clear to the Court that, but for this pressure, the payment would not have been made”
 Unclear what if any pressure the applicant alleges was brought to bear on him that would have suspended his power to exercise independent judgment, impelled him or to use his phrase ‘coreced’ him to sign an the agreement. There is nothing to suggest that he was placed under pressure NOT to even consult his attorney especially when in his own words he was at all times resolute and steadfast in contesting the action.
 It is common cause that on the 31st July 2016, well after the signing of the acknowledgement of debt (On 25 July 2016) which he now seeks to disavow, he made further payment of a sum no less than E100,000.00 to the respondent. He was hard put to explain payment especially in the context of the action he says he is contesting.
 In his replying affidavit he proffers no explanation other than deny he made it pursuant or in furtherance of his obligations under the deed of settlement. He says:
“I deny that, the payment made on the 31st July 2016 was made in accordance with the said acknowledgment of debt. As demonstrated in earlier paragraphs, I have been making regular payments even before the signing of the purported settlement agreement”
 I do not find this statement convincing at all. It is clear that this payment comes in the wake of the acknowledgment of debt and a pending action against the Applicant among others defendants. It is more likely than not therefore that it was being made in fulfilment of his obligation to discharge a debt due against his company and pursuant to the settlement agreement. There is no other reasonable explanation to it availing the Applicant.
 Even if it can be shown that the acknowledgment of debt was procured by duress (and of this I am not persuaded) this transaction presents the sort of difficulty that Makgoba J in Super Blitz Trading (Pty) Ltd v Koena (1159/2009)  ZAGPPHC 64 (9 May, 2012) referring to a passage in Kerr on Contracts where the latter says:
“If after the fear has been removed a person voluntarily performs what he promised under pressure or otherwise satisfies the transaction he is regarded as having given fresh consent and the transaction stands”
 The appellant has driven his application wholly and solely on the ground that the acknowledgement of deby was signed by him under duress thus negativing his intent. This being the only ground and in light of the approach alluded to earlier of addressing this as a threshold question on the facts as alleged and the applicant’s own version, I therefore find it unnecessary in the circumstances to range further into whether any other basis exists for voiding the agreement has been established. That is a conclusion consequent on a finding such as it the case here, that the applicant has failed to meet the threshold test and discharge his onus.
 Having made the finding that the applicant has failed to set out a case of duress, as sole ground for voiding the settlement agreement that should conclude the matter to all intents and purposes.
 In the respondent’s heads of argument we were addressed at length by the respondents attorneys Mr Mabuza on the question whether the agreement was voidable by reason of having been induced by false or fraudulent misrepresentation; which appears to be the essence of case set out in the applicant’s affidavit; albeit at variance with the ground stated in the Notice of Motion. As indicated I find it unnecessary to traverse this allegation as it has not been set up or invoked by the applicant as a ground for setting the settlement agreement aside. It is therefore a moot point and I do not propose to venture into it.
 In appropriate circumstances were a prima facie case of duress set out in the applicant’s version of the facts, I do recognise that the parties respective contentions on the material issues touching on and canvassing the standard defences in exception to the doctrine of ‘caveat subscriptor’ by reliance on assent to the document being procured through fraud or misrepresentations are superflows in this case for the reasons stated above. So are considerations turning on the probative value of the applicants alleged misrepresentations that the Settlement agreement was ‘not legally binding’ but only prepared and signed for reporting purposes.
 The circumstances of this case can thus be contrasted against and distiguished from the case of Gillian Patricia Langeveld v Union Finance Holdings (Pty) Ltd that I was referred to by the attorneys in their submissions. In that matter the case turned on the relative probabilities as between the party’s averments and contentions regarding the signature by the appellant of a suretyship section of an agreement and the question whether the formal requirements for a binding suretyship agreement were met to be valid. As indicated earlier, issues concerning the validity and circumstances of the signing of the settlement agreement are a tad removed from the foremost issues in the sense of being secondary to the pre-requisite threshold issues whether duress was established as a prima facie ground on the applicants own version in his own papers.
 In the premises and on the papers before me I have no hesitation saying that the applicant has failed to discharge the onus on him to prove ‘duress’ or even undue influence as a means used by the respondent to ‘coerce him into signing the acknowledgment of debt. For this reason the application must fail with costs.
 Finally, in this application serious allegations touching on the ethical conduct of attorneys have been made. The applicant has made what I believe are serious allegations which were revisited and amplified by his attorney during the hearing. These allegations are to be viewed in most serious light in view of the fact that they suggest unethical and unprofessional conduct on the part of the plaintiff’s attorneys in the course of prosecuting their client’s case.
 For obvious reasons to do with the context of this case found it unnecessary to delve further into these allegations particularly in so far as relevance of the allegations to the applicants cause has not been made clear and to my satisfaction.
 I have for reasons that will be apparent herein not least being the lack of sufficient factual or evidential detail herein, not made much comment or dwell on the same. I make no finding or evaluation of the merit or otherwise of the allegations suffice it to say the aggrieved party if minded to pursue the same should seek counsel and take up the matter within the relevant remedial procedures availing in terms of the regulatory framework of the Legal Practitioners Act.
As regards the application I make the following orders:
a) The application is dismissed;
b) Costs shall be in the cause.
JUDGE OF THE HIGH COURT
For the Applicant: Mr. N Tsabedze
For the Respondent: Mr. N Mabuza.
 Incidentally this was on the very date of signature of the Settlement Agreement.
 This is further echoed in clause 10 of the settlement which again provides that the applicant shall be entitled to make the Agreement of Settlement shall be entered against the Defendants by consent of the parties to facilitate its enforcement. See page 19 of the Book of Pleadings.
 Page 19 of the Book of Pleadings.