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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?
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?