How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask WCLawyer Your Own Question

WCLawyer
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14753
Experience:  L.LB (UOVS)
Type Your South Africa Law Question Here...
WCLawyer is online now
A new question is answered every 9 seconds

Good Morning, I currently work in the beauty industry and

Customer Question

Good Morning,

I currently work in the beauty industry and am a qualified professional and have recently started working for a new employer. The details of my situation:
A) I worked for my previous employers for roughly 5 years.
B) A year ago the business was bought by new owners as a going concern.
C) A few months ago i left this business to pursue a new opportunity (in the same industry).

Since I have started working for my new employer (C) my previous employer (B) has started harrasing my new employer (C) stating that i am in breach of my restraint of trade and they will be taking me to court. When my previous employers (B) bought the business from the original owners (A) I did not sign a contract with them (B) and only had an original contract with the previous owners of the business (A). There is proof that a contract was drawn up between the employer (B) and the employees however I did not sign this contract.

Would i be correct in assuming that due to the fact that i did not sign this contract I therefore cannot be in breach of a restraint of trade or would the fact that the business was purchased as a going concern make my original contract with my original employer (A) still valid in terms of the restraint of trade?

Thank you very much for your assistance.
Submitted: 11 months ago.
Category: South Africa Law
Expert:  WCLawyer replied 11 months ago.
Good day.

This is an info request to assist you better. Please continue on this thread.

How long did you work for B?
Customer: replied 11 months ago.

Good morning,


 


Approximately one year.

Expert:  WCLawyer replied 11 months ago.
And when they presented you with this new contract, did you verbally object to it?
Customer: replied 11 months ago.

In all honesty i do not recall the contract being presented to me at any point in time.

Expert:  WCLawyer replied 11 months ago.
1. The Labour Relations Act says that, when someone takes over a business as a running concern, he takes over the employees at the same terms and conditions. The Act actually says that he will be substituted as the employer in the employment contracts, as if he was the one who concluded it. So, if your old contract did not contain a restraint, then there is no restraint.

2. If the new contract was never presented to you (they need to prove, not only that it was, but also that you agreed to those terms and conditions, despite your signature not being on it), then I fail to see how they can enforce a restraint that was contained in that written agreement that was never presented to. You cannot unilaterally invoke a restraint of trade. The employee needs to agree to the restraint.

3. If there is no restraint of trade in the old contract, I think that your employer and you can tell them with confidence that they can take whatever legal action they deem appropriate, you will defend it and claim the costs from them.

I hope this answers your question, but if you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service, kindly rate it positively. I do not get anything unless you rate the service
Customer: replied 11 months ago.

Thank you very much for the information.


With regards XXXXX XXXXX old contract there was a restraint of trade.


However with them stating (and presenting) that there is a new (unsigned) contract would that nullify the old contract?

Expert:  WCLawyer replied 11 months ago.
It would not, unfortunately and the restraint of trade will probably still be valid. This does not, necessarily, mean that it can be enforced.

Generally a speaking, a contract of restraint of trade will, in the absence of factors like fraud and duress, be enforceable even if its terms are unreasonable or unconscionable. Since it is not the function of the court to remake the contract, it will not relieve one party from any term which he or she finds onerous or unexpectedly harsh. But an agreement in restraint of trade may, on the ground of public policy, be unenforceable.
The onus of proving that a restraint of trade is contrary to the public interest and hence unenforceable rests upon the opponent to the restraint. This burden of proof is not easily discharged. In deciding whether or not a contract in restraint of trade is contrary to the public interest, regard should be had to two considerations: agreements freely concluded should be honored, and everyone should be free to enter the business or professional world. An unreasonable restraint of trade between parties would in general probably also be contrary to the public interest. On the other hand, a restraint which is reasonable between parties might nevertheless, for a reason not peculiar to the parties, be in conflict with the public interest, and possibly also vice versa. Reasonableness is first of all determined with reference to the protectable proprietary interest(s) of the party in whose favour the restraint operates, which interest must have been infringed (actually, or there must at least have been a likelihood of or potential infringement). This interest should then (qualitatively and quantitatively) be weighed up against the interest of the other party (to be economically active and productive). If the latter interest surpasses the former interest, the restraint would as a rule be unreasonable and accordingly unenforceable. An important guideline in the weighing-up process is that the restraint should, as far as activities, area and duration are concerned, be necessary to protect the infringed or threatened interest. Other factors that may also play a part in judging the question of reasonableness, are facets of the public interest which have nothing to do with the relationship between the parties but may nevertheless require that the restraint should (or should not) be maintained, the inequality of bargaining power between the parties, the parties’ own view as to the reasonableness of the restraint, as well as the values underpinning the Constitution. The court will have regard to all the circumstances obtaining at the time when it is asked to enforce the agreement (and not when the agreement was concluded).

The court is not limited to a finding in regard to the contract in restraint of trade as a whole, but may declare the contract partially enforceable or unenforceable. The party seeking partial enforcement must establish a proper basis for such enforcement. In determining whether partial enforcement is justified, the court may take into consideration matters such as whether the restraint was unduly oppressive or designed to terrorize, and whether partial enforcement would not operate too harshly or unfairly towards the party bound by the restraint. An unreasonable restraint will not be partially enforced if it would require major plastic surgery, in the form of a drastic re-casting of its provisions, to make it reasonable. The court is therefore not obliged in all cases to whittle down an unreasonable restraint of trade until it eventually becomes reasonable.
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14753
Experience: L.LB (UOVS)
WCLawyer and 2 other South Africa Law Specialists are ready to help you
Customer: replied 11 months ago.

Thank you very much for your assistance.

Expert:  WCLawyer replied 11 months ago.
My pleasure. Please do not forget to rate.
Customer: replied 11 months ago.

I rated your service on the previous message.


 


Thanks again.

Expert:  WCLawyer replied 11 months ago.
I did receive it. Thank you very much.

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • PHINEAS MOTAUNG

    Attorney

    Satisfied Customers:

    113
    BACHELOR OF LAWS
< Last | Next >
  • http://ww2.justanswer.com/uploads/tumi65/2009-12-28_9197_BABA_I_FRIENDS_013.jpg PHINEAS MOTAUNG's Avatar

    PHINEAS MOTAUNG

    Attorney

    Satisfied Customers:

    113
    BACHELOR OF LAWS
  • http://ww2.justanswer.com/uploads/emil102/2010-05-04_160842_IMG000806.jpg Emil's Avatar

    Emil

    Attorney

    Satisfied Customers:

    33
    BCom Law LLB, 3 years post article experience as attorney
  • http://ww2.justanswer.com/uploads/Lurine/2010-10-04_101308_LCP.jpg LCP's Avatar

    LCP

    Attorney

    Satisfied Customers:

    21
    BCom (Stell) LLB LLM
  • http://ww2.justanswer.com/uploads/KimGAtt/2009-11-04_164526_Profile.JPG K. Groenewald's Avatar

    K. Groenewald

    Attorney

    Satisfied Customers:

    19
    LLB (Pret). Extensive litigation experience in general civil & family law matters. Debt Counsellor.
  • http://ww2.justanswer.com/uploads/SA/SATOPLAW/2013-9-13_13566_IMG20130304WA000.64x64.jpg Shaie Zindel's Avatar

    Shaie Zindel

    Attorney

    Satisfied Customers:

    1052
    All areas of commercial and contract Law - specialist in property advice.
  • http://ww2.justanswer.com/uploads/IN/inciteadvisor/2013-9-5_193316_incitead.64x64.jpg inciteadvisor's Avatar

    inciteadvisor

    Commercial Lawyer

    Satisfied Customers:

    814
    B.Com LLB Registered Corporate lawywer
  • http://ww2.justanswer.com/uploads/AN/AntonSmith13/2013-2-21_17147_Snapshot.64x64.png AntonSmith13's Avatar

    AntonSmith13

    Attorney

    Satisfied Customers:

    45
    LLB, LLM, Cert. International Law Attorney with 12 years experience