A critical analysis of the concurrent enforceability of restraint of trade agreements and garden leave in South African Labour Law

Abstract

The study critically analyses the concurrent enforceability of restraint of trade and garden leave in South African Labour law. The study seeks to answer the question of whether or not the simultaneous enforceability of restraint of trade agreements and garden leave is reasonable. Designed within a qualitative paradigm primarily based on a critical literature review, the study employs a doctrinal approach to establish the contemporary legal position in respect of the simultaneous enforceability of restraint of trade agreements and garden leave in South African Labour law. The objectives pursued by the study are to mitigate the controversies and clear the confusion relating to the enforceability of restraint of trade agreements; to justify the doctrine of restraint of trade; assess the reasonableness of the simultaneous enforceability of garden leave and restraint of trade; examine the onus of proof in matters dealing with the enforceability of restraint of trade agreements; test the constitutionality of restraint of trade agreements; evaluate the relationship between restraint of trade agreements and garden leave; and propose practical recommendations that can be employed to address identified legal flaws in the context of the topic. Structurally, the study begins with unpacking the background to the research topic, the history, origin and rationality of restraint of trade agreements together with an assessment of their enforceability. It further examines the effect of garden leave on restraint of trade agreements, outlines comparative perspectives on restraint of trade, including aspects relating to garden leave and highlights lessons South Africa may learn from the selected jurisdictions. Finally, the study recommends that South African jurisprudence should be developed to shift the burden of proof to employers to prove reasonableness of garden leave and restraint of trade agreements, to impose an obligation on employers to pay former employees for rendering them jobless and to set a maximum period that an employee can be prevented to compete or be employed by employer’s competitors.