- Title
- Public policy considerations and the enforcement of restraint of trade agreements.
- Creator
- Tinyane, Nthabeleng
- Subject
- Trade agreement
- Subject
- Restraint of trade
- Subject
- Commercial policy
- Date Issued
- 2024-04
- Date
- 2024-04
- Type
- Master's theses
- Type
- text
- Identifier
- http://hdl.handle.net/10948/66297
- Identifier
- vital:74493
- Description
- A restraint of trade is often incorporated into a contract of employment, stipulating that an employee is restricted from working in the same industry or sector as the employer for a specified period of time. Such a provision is aimed at protecting an employer's proprietary interests, such as trade connections and secrets, which may potentially benefit a competitor unfairly and unlawfully. In South Africa, the principles associated with restraints of trade are rooted in common law. The landmark judgment in Magna Alloys & Research (SA) (Pty) Ltd v Ellis clarified the legal position regarding agreements in restraint of trade in South Africa. Prior to the judgment, there were considerable differences in the approaches adopted by the courts in relation to provisions in restraint. These differences primarily centered around the Roman-Dutch law notion, which holds that contracts voluntarily entered into ought to be honored (pacta sunt servanda), and the English law approach that contracts in restraint of trade are prima facie unenforceable. The court in Magna held that the position in South Africa with regard to agreements in restraint of trade is that each agreement should be examined with regard to its own circumstances to determine whether the enforcement of such an agreement would be contrary to public policy. This means that while restraints of trade are generally enforceable, they must be reasonable and not against the public interest. The reasonableness of the restraint is assessed based on factors such as the duration and geographic scope of the restraint, the nature of the employee’s role, and the interests of the employer that the restraint seeks to protect..
- Description
- Thesis (LLM) -- Faculty of Law, Department of Mercantile law (Labour Law), 2024
- Format
- computer
- Format
- online resource
- Format
- application/pdf
- Format
- 1 online resource (54 pages)
- Format
- Publisher
- Nelson Mandela University
- Publisher
- Faculty of Law
- Language
- English
- Rights
- Nelson Mandela University
- Rights
- All Rights Reserved
- Rights
- Open Access
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Collections
NMU Department of Mercantile Law
| Thumbnail | File | Description | Size | Format | |||
|---|---|---|---|---|---|---|---|
| View Details Download | SOURCE1 | Tinyane, N April 2024.pdf | 2 MB | Adobe Acrobat PDF | View Details Download |