| mekanik |

| restraints - you can't stop a baker from being a baker |

To be enforceable, a restraint clause must not be against public policy, meaning the clause must be reasonable and aimed at protecting some legally recognisable interest of the employer, e.g. trade secrets.  The fine line between legally recognisable and non-legally recognisable interests falls on how firm-dependent the interest, for which protection is sought, is.  The more firm-dependent, the more likely a court is to find that a restraint clause is reasonable while on the other hand, information open to the public is less likely to be considered reasonable for protection.

 

In essence, the court is willing only to protect interests that might properly be described as belonging to the employer.  Therefore, it is only when the clause is sufficiently tailored to the goal of restricting employees from infringing upon proprietary interests of the employer that a court will uphold the clause in question.

 

The Supreme Court of Appeal flushed out this issue in its 2007 case Automotive Tooling Systems (Pty) Ltd v Wilkens and Others.  At issue in that case was whether Automotive Tooling, had a proprietary interest worthy of protection in the know-how it bestowed upon its former employee/respondent.  Automotive Tooling had been in the business of design, manufacture and customisation of special purpose machines for 13 years, while the employees were responsible for the laborious parts of building the machine.  The employees played no part in the design of the machines.  This fact alone does not preclude Automotive Tooling from having a valid claim in the restraint clause as the manufacturing processes could have been a company secret, tightly controlled and protected by Automotive Tooling.

 

However, there was no evidence that the process of manufacturing the machines was unique to Automotive Tooling.  In fact, the evidence demonstrated the opposite.  There were a number of other businesses in South Africa that were capable of producing the same or similar machines.  Moreover, Automotive Tooling’s process for building the machines was never treated as confidential.  Apparently all employees, including the independent contractors, had free access to the processes.  Thus the court held that the skills acquired were a part of the employees’ general knowledge, and therefore did not belong to Automotive Tooling since such knowledge cannot be prevented from being exploited.  As such, Automotive Tooling held no proprietary interest that could be legally recognised.  The restraint was therefore inimical to public policy and unenforceable.

 

In essence once cannot stop a baker from being a baker. The lesson to be learnt from this is that it is in fact very hard to enforce restraints of trade against employees other than to protect the real proprietary secrets of the employer.

 

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delport ward & pienaar

attorneys, notaries &  conveyancers
1st floor - cornerstone house

16 loop street

cape town

8001

 

telephone, cape town
+27-21-419.3733

 

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+27-21-419.3743

 

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+852-8139.7374

 

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1st floor - cornerstone house, 16 loop street, cape town | docex 600, cpt | t, +27-21-4193733 | f, +27-21-4193743

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