In trendy employment contracts, restraint of commerce clauses are generally inserted to guard the employer’s proprietary pursuits. The aim thereof is to ban an worker for a specified interval and prescribed geographical space from taking on employment with a direct competitor.
Employers must be cautious of workers who breach restraint of commerce clauses and agreements as this will likely result in exponential loss within the employer’s proprietary pursuits and status out there. Urgency is a crucial ingredient for the profitable safety of an employer’s proprietary curiosity.
When the restraint of commerce obligations of an worker is breached, an employer could launch an pressing software interdicting the worker from taking on employment with the direct competitor.
Rule 8 of the Guidelines for the Conduct of Proceedings within the Labour Court docket highlights the grounds for pressing purposes. An applicant in search of reduction by the use of an pressing software seeks an indulgence from the courtroom for the applying to be given choice and handled as certainly one of urgency given the character of the employer’s enterprise.
The onus, in accordance with Rule 8 of the Labour Court docket Guidelines, is on the employer who seeks reduction when it comes to the pressing software to offer substantial reasoning, inside the founding affidavit, why the matter earlier than the courtroom needs to be handled as certainly one of urgency. In Sibongelenn Radebe v The Aurum Institute (C662/2023) [2023] ZALCCT 66, the courtroom reiterated that when figuring out urgency, it’s essential that the applicant has inside their founding affidavit established the background circumstances which make the matter pressing and the core reasoning why substantial reduction can’t be attained inside the regular prescribed timeframe.
Urgency is decided by the courts on a case-by-case foundation. The core intention of the applying is directed to guard the employer’s proprietary pursuits in relation to their commerce secrets and techniques, confidential data, and firm purchasers.
In Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA) the worker, as per his restraint of commerce clause was prohibited from becoming a member of the employer’s direct rivals out there. The courtroom present in favour of the employer, stating that the restraint of commerce clause within the employment contract was neither unreasonable nor opposite to public coverage and will stand. Due to this fact, a restraint of commerce clause is cheap except it may be proved to be unreasonable. Nevertheless, the onus of proof rests on the particular person alleging its unreasonableness.
This weblog was co-authored by Francisco Andrade-nobrega, Candidate Lawyer.