Restraints of trade agreements revisted: the law and recent developments

Singo, Bertha Hloniphile

Restraints of trade agreements revisted: the law and recent developments

Master Thesis

2021

Abstract

The English law traditional approach which deems restraint of trade agreements to be prima facie unenforceable was rejected under the South African legal system, as it was not consistent with the leading contractual law principles, from this the principle that restraint agreements are prima facie enforceable until the party seeking to escape the agreement shows that the agreement is unreasonable and contrary to public policy was founded. The application of the principle founded other restraint of trade principles which guide courts when making inquiries on the enforceability of a restraint of trade agreement. To determine whether uniformity existed in the application of the guiding principles of the restraint of trade doctrine in the employment law context, I examined and analysed case law from the year 2015 to 2020 using case law and academic writings. There has been in most of the cases, a uniform approach in the application of principles under the restraint of trade doctrine. Courts guided by constitutional values continue to endorse making value judgments. An important contribution has been regarding the operation of a garden leave clause together with a restraint clause in an employment contract, from which it was observed that where both clauses are included in an employment contract the operation garden leave clause will affect the operation of the restraint clause against an employee. The results from the research demonstrate that there has been in most of the cases, a uniform approach in the application of principles under the restraint of trade doctrine. The dictates of public policy governed by constitutional values which guide the balancing of the interests of the parties remain central to the determination of the enforceability of the restraint of trade agreement.

Keywords

Commercial Law

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