The Protection of Confidential Information in Restraint of Trade Agreements

by | Oct 12, 2024 | ILJ, ILJ V45 I4

The Protection of Confidential Information in Restraint of Trade Agreements

Authors Michelle van Eck & Marthinus van Staden

ISSN: 2413-9874
Affiliations: Associate Professor, Department of Private Law, University of Johannesburg; Associate Professor, School of Law, University of the Witwatersrand
Source: Industrial Law Journal, Volume 45 Issue 4, 2024, p. 2187 – 2210
https://doi.org/10.47348/ILJ/v45/i4a3

Abstract

This article examines the balance between protecting an employer’s confidential information and the enforceability of restraint of trade agreements. Central to the discourse is the principle that while employers legitimately seek to safeguard their proprietary information and trade secrets, such measures must align with public policy considerations to avoid unduly curtailing employees’ employment opportunities. Restraint of trade clauses are not inherently invalid but must be scrutinised for their reasonableness, necessity in protecting legitimate business interests and compliance with public policy. Focusing on confidential information as a key protectable interest, the article delineates the conditions under which such information qualifies for protection and how its misuse by former employees poses a legitimate concern for employers. The article underscores a growing tendency to prioritise the safeguarding of employers’ interests, particularly concerning proprietary information. This focus has led to foundational contractual principles being overlooked. The article argues for a nuanced understanding that considers the confidentiality undertaking, location and timing. It underscores the need for the judicious drafting and enforcement of restraint of trade clauses and confidentiality undertakings, guided by clear legal principles that safeguard both employers’ proprietary interests and the public interest in fair competition and employment mobility.

Note: Can a Hypothetical Comparator be used in an Equal Pay Claim under Section 6(4) of the EEA?

by | Oct 12, 2024 | ILJ, ILJ V45 I4

Note: Can a Hypothetical Comparator be used in an Equal Pay Claim under Section 6(4) of the EEA?

Author Shamier Ebrahim

ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Mercantile Law, Unisa; Advocate of the High Court of South Africa; LLB (NMMU); LLM Labour Law (cum laude) (Unisa); LLD (Unisa)
Source: Industrial Law Journal, Volume 45 Issue 4, 2024, p. 2211 – 2221
https://doi.org/10.47348/ILJ/v45/i4a4

Abstract

This note deals with the question whether a hypothetical comparator can be used in an equal pay claim under s 6(4) of the Employment Equity Act. A reading of s 6(4) which contains the three equal pay causes of action requires an equal pay claimant to compare her terms and conditions of employment with those of an actual comparator. This, however, is not the end of the matter as item 6.5 of the Equal Pay Code provides that an equal pay claimant may base an equal pay claim on the ground that she would have received higher pay if she were not a female and this allows for the use of a hypothetical comparator. It is contended that s 6(4) of the EEA, read with item 6.5 of the Equal Pay Code (and Mutale’s case), provides for the use of a hypothetical comparator and this argument is buttressed by both international labour law and United Kingdom equal pay law.

Note: Mandatory Sanctions Miss the Mark: An Evaluation of Centre for Child Law & others v SA Council for Educators & others 2024 (4) SA 473 (SC)

by | Oct 12, 2024 | ILJ, ILJ V45 I4

Note: Mandatory Sanctions Miss the Mark: An Evaluation of Centre for Child Law & others v SA Council for Educators & others 2024 (4) SA 473 (SC)

Author Cecile de Villiers

ISSN: 2413-9874
Affiliations: Lecturer, University of Cape Town
Source: Industrial Law Journal, Volume 45 Issue 4, 2024, p. 2221 – 2238
https://doi.org/10.47348/ILJ/v45/i4a5

Abstract

Managing the conduct of public educators is the joint responsibility of the relevant provincial department of education as employer and the South African Council for Educators (educators’ council) tasked with upholding ethics in basic education. Each has its own disciplinary code and procedures to manage educator misconduct, and both include mandatory sanctions for misconduct such as assault. The Centre for Child Law challenged the disciplinary decisions by presiding officers in two assault cases where mandatory sanctions were imposed in line with the mandatory sanctions policy of the educators’ council. While the High Court found it a constitutional imperative that the educators’ council revise its mandatory sanctions policy, the Supreme Court of Appeal (SCA) held that the policy unlawfully restricted decision- makers’ discretion. The disciplinary decisions made by the educators’ council were held to be unlawful, invalid and in breach of its constitutional obligations towards children. This note illustrates the risks posed by mandatory sanctions to the effective management of educator misconduct. It argues that the SCA judgment has broader significance for the management of misconduct, particularly assault, in public basic education and that the educators’ council and employer should abandon mandatory sanctions in response to educator misconduct.

A Historical Overview of Legislative Measures to Criminalise Same-Sex Relations in Selected African Countries

by | Aug 25, 2024 | FUND, FUND V30I1

A Historical Overview of Legislative Measures to Criminalise Same-Sex Relations in Selected African Countries

Author John C Mubangizi

ISSN: 2411-7870
Affiliations: LLB (Makerere University) LLM (University of Cape Town) LLD (University of KwaZulu-Natal). Professor, Free State Centre for Human Rights, Faculty of Law, University of the Free State
Source: Fundamina, Volume 30 Issue 1, p. 1-35
https://doi.org/10.47348/FUND/v30/i1a1

Abstract

Same-sex relations are illegal in thirty-two African countries. In some of those countries, offenders are punishable by death. This contribution provides a historical overview of the legislative measures aimed at the criminalisation of same-sex relations in selected African countries, namely Uganda, Kenya, Nigeria, Botswana and South Africa, and examines its correlation with human rights protection and the rule of law. The legislative measures adopted in these countries originated with colonial influences that introduced anti-same-sex laws there during the nineteenth and twentieth centuries. The remnants of these colonial-era laws have persisted, shaping the legal landscape and societal attitudes towards LGBTQIA+ communities. Some countries have upheld and reinforced existing laws, often invoking cultural or religious values to justify the criminalisation. Others have made strides towards decriminalisation or have taken steps to protect the rights of LGBTQIA+ individuals, reflecting a dynamic interplay between tradition, human rights and legal development. The study also looks at the state of human rights and the rule of law in these countries. The correlation between anti-LGBTQIA+ legislation, human rights and the rule of law then becomes a focal point, emphasising the poor record of human rights protection in countries that have criminalised same-sex relations as opposed to countries that have decriminalised such relations. Ultimately, this contribution offers critical insight into the evolving legal landscapes of the selected African countries regarding same-sex relations. It underscores the relationship between anti-LGBTQIA+ laws, human rights and the rule of law.

From Judicial Management to Business Rescue: a Critical Analysis of the Meaning and Purpose of Business Rescue in South Africa Since 1926

by | Aug 25, 2024 | FUND, FUND V30I1

From Judicial Management to Business Rescue: a Critical Analysis of the Meaning and Purpose of Business Rescue in South Africa Since 1926

Author Simphiwe P Phungula

ISSN: 2411-7870
Affiliations: LLB LLM PhD (UKZN). Senior lecturer, Commercial Law Department, University of Cape Town
Source: Fundamina, Volume 30 Issue 1, p. 36-67
https://doi.org/10.47348/FUND/v30/i1a2

Abstract

When the concept of “corporate rescue” was introduced in the form of judicial management in South African company law in 1926, it was unique. By the start of the twentieth century, it had become clear that companies were not only major contributors to the economy, but also major employers. It was obviously desirable that companies with economic potential should not be wound up and liquidated if they encountered financial difficulties that could, potentially, be overcome relatively quickly with a return to solvency and viability. That goal, stated in these broad terms, concealed many arising difficulties – one of them being how to determine whether a struggling company had the potential to return to solvency? This and many other difficulties have led to the evolution of corporate rescue since its introduction. Appraising the corporate rescue culture in South Africa is therefore an opportunity to advance knowledge within the area of corporate law and to contribute to the understanding of how business rescue has developed in both theory and practice.