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Article 40/2024

LabourEdge

The traditional approach taken by employers, when introducing restraints of trade agreements, entailed stifling the competition.

However, legal developments that followed essentially amount to only proprietary interests worthy of protection, such as trade connections and trade secrets, could lawfully be protected by means of restraint of trade agreements.

What are the questions to be answered when determining the reasonableness or otherwise of a restraint of trade, recently referred to by the labour court in Shoprite Checkers v Johnson and Others (2023) 44 ILJ 906 (LC); (2023) 34 SALLR 79 (LC)?

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In the Shoprite Checkers judgment, Le Grange J applied the test determined in Basson v Chilwan and Others 1993 (3) SA 742 (A) and further elaborated upon in Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA) and, in doing so, applied the following relevant questions:

  • question 1: did the one party have an interest that deserves protection after termination of the agreement? – referring to a trade secret or trade connection
  • question 2: if so, was that interest threatened by the other party?
  • question 3: if so, did such interest weigh qualitatively and quantitatively against the interest of the other party not to be economically inactive and unproductive? – with reference to s22 of the Constitution
  • question 4: was there another aspect of public policy having nothing to do with the relationship between the parties that requires that the restraint be maintained or rejected?
  • question 5: did the restraint go further than was necessary to protect such interests?
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?