Article 40/2024

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?

What are the consequences of the failure of a party or its representative appearing at arbitration in view of the content of s138(5) of the LRA?

Is a commissioner empowered to proceed with an arbitration involving a dispute referred to in terms of s191(5)(a) of the LRA, despite an objection by the other party to the dispute, but in non-compliance with rule 17(2) of the CCMA rules?

The constitutional court, in National Union of Metalworkers of SA v Lufil Packaging (2020) 31 SALLR 138 (CC).